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The Problem with Red Flag Laws

W. Scott Cole

Posted on March 7, 2019 01:35

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Red Flag laws are becoming increasingly popular, with several states passing them in just the last few months. On their face, they make perfect sense. If a person is a danger to himself or others, a judge can order the police to seize any guns in the house he lives in and they are not returned until the person is no longer a danger. Any thinking person would want weapons removed from the reach of such a person. Red Flag laws, however, are the wrong way to do it.

There are too many things wrong with the Red Flag laws to go into here, but the main ones can at least be touched upon.

First, and perhaps most important, once again, the law focuses on the tool a mentally unbalanced person uses to harm himself or other people. A gun is a destructive tool, but it is, nonetheless, a tool. To say that guns kill people is like saying that pencils misspell words or that spoons make people fat.

In order for any law to effectively reduce gun suicides and mass shootings, those laws need to focus on the people. Instead of ordering the police to seize the guns of someone who is not prohibited by law from owning them, if anything, the order should be for the police to seize the person and transport him to a hospital for a 72 hour mental health evaluation. Several school shootings could have been prevented if police had done this when they had gotten calls concerning the shooter before he walked into a school. Instead, those phone calls (red flags) were ignored by police.

Second, police are seizing the guns of a person not prohibited by law from owning them. To me, that is a clear violation of the Second Amendment. I am not the only one to think so, as the sheriffs of some counties in several states, such as Oregon, Nevada, New Mexico, and Colorado, among others, have declared their counties to be Second Amendment Sanctuaries. They will refuse to obey a court order to remove someone’s guns pursuant to a red flag law.

Third, the laws violate the Constitution in several other ways:

a) There is no due process before a person loses his guns. The decision to seize a person’s guns is made by a judge after (maybe) holding a secret hearing at which neither the person nor his lawyer is allowed to be present and to present evidence on his behalf that he is not a danger. He is not even informed that there is a complaint made against him, nor the time and place of the hearing;

b) The seizure order does not require a search warrant. The police can go to a person’s residence and enter his house to search for and seize his guns, regardless of the requirements of the Fourth Amendment;

c) After a set period of time, anywhere from 21 days to a year, the gun owner can petition the court to return his guns to him. He must then prove that he is not a danger. How do you prove a negative? Can you prove you will not take a certain action, regardless of what that action is? Additionally, the gun owner must hire an attorney and spend potentially thousands of dollars to be allowed to again exercise rights guaranteed to him by the Constitution.

Far from being good law, Red Flag laws look like a first step to destroying the Constitution.

W. Scott Cole

Posted on March 7, 2019 01:35

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