Tuesday, I wondered why the VNRA was pushing “red flag” laws with “due process” instead of a Florida style Baker Act. After all, the Baker Act allows due process before the subject’s Second Amendment right are suspended.
In comments, JdL asked a very reasonable question.
But I’m not crazy about your proposed substitute. Why do we need any law that snatches someone off the street who has not committed any crime?
Proponents of red flag/ERPOs claim their only concern is getting guns away from dangerous people.
The VNRA — who backtracked slightly after the uproar over their support — claim they don’t want dangerous people to have guns, but that due process is needed. Except when it isn’t.
If safety is the real motivator for these laws, “Baker Act” type laws would seem to be a better fit with the Constitution, although still problematical in its preemptive (“pre-crime“) aspect.
And therein lies my trap. For victim disarmers, whether Giffords Law Center or the Vichy National Rifle Association.
Every state and the District of Columbia already has Baker Act or equivalent laws on the books. And they’ve survived judicial scrutiny. They allow due process before permanent (or long-term) loss of rights. They provide tools to take people into custody, with probable cause as opposed to anonymous complaints, to determine if they are a danger to themselves or others.
I’m proposing nothing more than using existing laws that allow due process and do what these people claim to want.
The only thing ERPOs do that current laws and tools don’t do is violate human/civil rights without due process, with no notice. Anonymously. And then leave the possibly now angered subjects on the loose with access to other lethal weapons.
“Baker Act” style laws require probable cause for someone to be taken in evaluation (officer called, notes person behaving strangely), then a doctor establishes probable cause for committal hearing (yep, he’s crazy), then a due process hearing is held for a judge to make the determination, at which point 2A rights can be suspended.
ERPOs skip all the probable cause and due process and go straight to rights violation. As others have noted, ERPOs are just legalized SWATting.
There’s a reason they call them “red flag” laws.
So, please NRA, explain again why you back unconstitutional new laws when these tools are already in every states’ toolbox?
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