Amy Swearer, of the Heritage Foundation, is stunningly ignorant of “red flag” laws (and Constitutionality) for an alleged “senior legal policy analyst.” But then, she works in the Meese Center, and Edwin Meese was never a friend to the Constitution.
Answers to Common Questions About “Red Flag” Gun Laws
What are these laws? What do they accomplish that existing laws don’t already do? What concerns should law-abiding Americans have about them?
These are the types of questions that must be explored in depth, with reasoned analysis and absent knee-jerk conclusions.
And a-fisking we go. It rapidly becomes obvious Swearer has no frickin’ idea what she’s talking about.
These laws have become increasingly popular since the February 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, even though the first such law was enacted by Connecticut in 1999.
The chumbucket had been reported to law enforcement for multiple disqualifying felonies and misdemeanors. He was known to be so dangerous that the school had him searched for weapons daily. He was probably a prohibited person — whom the state failed to report to NICS — because Florida DCF claims he was a “vulnerable adult due to mental illness,” which is a legal status based upon adjudication by a court. So-called red flag laws weren’t needed to deal with him, and they’d do no good if authorities aren’t interested in enforcing any laws like assault with a deadly weapon, domestic abuse, criminal threatening, destruction of property, killing animals, and so on and so forth. The FBI likewise blew off credible — documented — reports that the chumbucket intended to shoot up a specific school with a specific weapon.
Part of the problem is that civil commitments are a legally intensive process with serious (and often lifelong) implications for the person being committed. They are, therefore, often reserved as a last resort when all else has failed.
So are “red flag” orders; sometimes they last the rest of the person’s — short — life. But they are for when nothing else has been resorted to. The Odessa-Midlands killer had contacts with the FBI seemingly going back for years. Local law enforcement blew off a report of unlawful gun-fire simply because his address wasn’t in their GPS; they “couldn’t find” his house.
Q: What about the Second Amendment?
A: The Second Amendment protects the right of law-abiding citizens to keep and bear arms commonly used for lawful purposes.
What about the 5th and 14th Amendments, while you’re busily dismissing the Constitution? There’s that funny little thing about “due process.”
Where the facts and circumstances give specific reason to believe that a person is likely to cause imminent unlawful harm to himself or others, the person may be disarmed until he can reassure the community that he does not pose a violent threat.
Incorrect. If there is a factual basis for an accusation that a crime is being planned, the person can be arrested, and face due process procedures. “Red flag” proceedings are — by definition — ex parte, and generally require an unsubstantiated accusation. Colorado allows accusations to be phoned in, and the order is granted immediately with no actual hearing in which the accuser presents evidence.
Of course, the Constitution also demands that such individuals receive meaningful due process protections prior to the restriction of their rights, and great pains should be taken to ensure that individuals cannot be punished for merely holding offensive views or engaging in objectionable, but nonviolent, behaviors.
So where is the due process in “red flag” orders? In TRUAX, the Supreme Court requires “due process” to occur before the taking. “Red flag” laws allow no course for the accused to defend himself until well after his property has been stolen. That’s their intent.
And apparently holding the “offensive view” that one should be prepared to exercise deadly force to defend against initiated deadly force is suitable grounds for red-flagging innocent people.
For example, the parents of the man who killed six people and wounded 13 in Tucson, Arizona, in 2011 were so worried about his mental health, they disabled his car and tried to hide his firearms. They tried unsuccessfully to get him mental health treatment.
They didn’t try very hard. In fact, the punk had been arrested on charges which, if convicted, would have made him a prohibited person. The sheriff — who immediately blamed the lack of gun control laws for the attack — exercised a little professional courtesy to a fellow county employee, and ordered the killer-to-be’s release without charges. No “red flag” needed… if the sheriff did his job.
Similarly, red flag laws could have prevented the Parkland, Florida, shooting by allowing the family with whom the shooter was staying to petition a court for disarmament after local law enforcement and school officials refused to take action, despite repeated indications that the shooter was dangerous.
That single sentence is astounding: “Red flag” laws could have worked, even though they had — ignored — evidence that he was dangerous.
Let’s get into this more.
Q: What makes a good red-flag law?
Good question.
Use narrow definitions of “dangerousness” that are based on objective criteria and that don’t treat factors such as lawful firearm ownership or political affiliation as presumptively suspicious;
That rules out every “red flag” bill I’ve read. They are all based not on objective criteria, but I feelz that somebody might do something sometime.
And firearm possession is a primary criterion for “red flag” orders, since they are for removing firearms thought to be present.
Moving on, it appears Ms. Clueless is attempting to define what “red flag” orders are not.
Be temporary in nature, limited only to the period of time the person remains a danger to himself or others, and provide for the prompt restoration of firearms and corresponding rights when the danger no longer exists;
But none of them do that. They arbitrarily set extended periods on rights violations, and specifically disallow petitions for rights restoral except at preset intervals; usually 6-12 months, sometimes years, regardless of medical findings in the meantime.
Afford strong due process protections, including high burdens of proof (i.e., “clear and convincing evidence”), cross-examination rights, and the right to counsel.
Look, “senior legal policy analyst,” go read TRUAX. Understand due process, then explain how an after the fact, in which the accused is required to prove his innocence (of something that hadn’t occurred), at his own expense, is due process. The burden of proof on the accuser is Well, he might, while the actual burden of proving he didn’t is on the victim.
Provide meaningful remedies for those who are maliciously and falsely accused, and expunge any records of petitions that are not granted;
Most “red flag” laws exclude penalties for false accusations. In one case, a legislator offered and amendment that would specify flase accusation penalties; it was refused.
Be integrated with existing mental health and addiction systems to ensure that people who are deemed to be dangerous because of underlying factors receive the treatment they need.
No “red flag” law does that. Florida’s version includes the option of invoking the Baker Act after the fact, and in a separate action (meaning the victim of the order needs even more — expensive — legal representation.
Q: Aren’t red flag laws dangerous for law enforcement?
A: Certainly, law enforcement officers may face violent threats while serving red flag orders and seizing firearms from individuals determined to be dangerous under these laws.
To date, they’ve proven more dangerous to the target of the order.
And more dangerous to the rights of other people on the theory that the subject non-targets, with authorities seizing firearms might burglarize a house and steal guns.
Q: Where can I find out more about red flag laws?
A: The Heritage Foundation has previously written about red-flag laws here:
Better to get your information from someone who knows something about “red flag” laws.
[Permission to republish this article is granted so long as it is not edited, and the author and The Zelman Partisans are credited.]
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