Today’s post is a quick, rather informal, response to a Facebook comment I received from a person known to me. The comment was in response to an opinion piece in the Washington Examiner that was critical of so-called “red flag” laws. The comment asked reasonably skeptical questions from the perspective of someone not well-informed on the relevant issues. Here’s an abridged version of the skeptical comment:
The article [critical of red flag laws] says “The ‘red flag’ laws are stripping citizens of their protected right to keep and bear arms without due process…” but it doesn’t say any thing about how it does this. And how is due process being denied? I heard that the Colorado [red flag] law is very tight and well written, but no one explained to me how they make that conclusion, only that it is a good law.
Here’s my response:
The whole red flag notion is ridiculous on its face. If someone is an “extreme risk” to the public they ought to be locked up, period. It makes no sense to lock up the person’s gun, but leave them free to rent a 4,000-pound truck loaded with cans of gasoline and road flares and drive it into a group of school children at recess.
The gun doesn’t make a person dangerous, the dangerous person is the danger. If the goal was genuinely public safety, the actual danger–the dangerous PERSON–would be secured.
Given that the “red flag” laws do not, in fact, secure the safety of the public, their focused application to the Constitutional right of Americans who happen to own guns can only be considered to be maliciously intended.
Further, due process requires things like the right to be present to contest the allegations against you, to have a lawyer present, to cross-examine the witnesses against you, to present your own evidence, and more.
The Colorado red flag law lacks due process precisely because it allows for the seizure of guns WITHOUT any requirement that the person alleged to be dangerous be permitted to be present, that they be permitted to have a lawyer represent them, that they be permitted to examine the witnesses against them, that they be permitted to present counter-evidence, or anything else the American system of justice generally requires in order to ensure justice in a criminal proceeding. This utter lack of due process is common to all red flag laws with which I am familiar.
Further, all of this denial of due process occurs in a context of a fundamental Constitutional right that has long since been recognized by the Supreme Court as a personalized, individual right.
Worse, this violation of a personalized Constitutional right without due process of law can be triggered merely by the say-so of “a family member,” whatever that means. A second-cousin? A hateful in-law? A second-cousin’s hateful in-law?
And if it turns out that the claim that the accused is an “extreme risk” to the public is a completely fabricated allegation, does the person falsely accused have any recourse against the false accuser for their false claims, for the likely thousands of dollars in legal expenses the falsely accused incurred, for the falsely accused having been unjustly deprived of their Constitutional rights and their ability to defend themselves and their family from criminals?
No, they do not.
Again, everyone can agree that dangerous people need to be prevented from causing harm, and we can do so WITHOUT any need for a so-called “red flag” law–if a person is demonstrably an “extreme risk” to the public they ought to be locked up, completely independently of whether they happen to have a gun, and legal procedures for that ALREADY exist. If securing the public’s safety was actually the goal, THAT is what would be done.
Of course, THOSE procedures for locking a claimed dangerous person up DO require due process of law for the accused.
And that’s all I have to say about that, at least for today.
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