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Red Flag Laws Can Work, If Done Right
Crafting and supporting laws that target criminal intent, such as properly worded red flag laws, can protect the rights of the law-abiding from infringement. But "properly worded" is the key.
I believe in constitutionally limited government, but part of that framework is assuring and supporting the ordered part of ordered liberty. Government, and the crafting of laws, is necessary to a certain extent in order to safeguard liberty from the oppression of chaos.
As a strident supporter of the 2nd Amendment, I believe in finding and supporting laws and proposals that I can support. This is especially important in the midst of the chaos and fear caused by the uptick in mass shootings. Even reasonable people are latching onto unreasonable and unworkable solutions that would infringe on the rights of the law-abiding. It falls to those of us who want to protect this important right to counter poor solutions with good solutions.
It’s important to understand that the opponents of the individual right to bear arms want supporters of that right to entrench themselves and to believe that any and every idea is a form of surrender. This allows them to paint 2nd Amendment defenders as unreasonable and uncaring, which creates an opening for their policy agenda.
Red flag laws are something that should be seriously considered. They represent a rare proposal that, if done correctly, focuses on the criminals planning the crimes instead of on the weapons of law-abiding citizens.
First off though, it has to be conceded that many of the red flag laws currently enacted in Democrat-controlled states are poorly written, can easily lead to violations of the 2nd Amendment, and could allow red flags to be triggered by hearsay. So, the first step towards bettering our discussion is recognizing that we are not bound by the Democrat's language in discussing the idea of red flag laws.
Opposition to red flag laws largely boils down to two key concerns: whether it is possible for a red flag law to be utilized without allowing hearsay to strip a law-abiding citizen of their 2nd Amendment Rights or allowing a violation of due process, and whether a red flag law is even necessary given current tools at law enforcement's disposal.
So, what’s hearsay? Oxford defines hearsay as "information received from other people that one cannot adequately substantiate; rumor." Hearsay would be when someone says, "Joe told me that Susan said she doesn't like me." But if the statement is, "Susan walked up to me and told me she doesn't like me," it's not hearsay as it is information received from the source. To put it as simply as possible: hearsay is second-hand information.
It would be extremely easy to ensure a red flag law is written to make sure a red flag cannot be triggered by second-hand information. And addressing this concern is important. Second-hand information shouldn't be allowed to strip someone of their rights, it should only trigger an investigation. But, a credible first-hand witness from family, cohabitants, or persons in positions of trust is compelling testimony, not hearsay.
I would be the most vociferous foe of a red flag law that allowed hearsay. To violate someone's unalienable rights predicated only upon hearsay would indeed be an unconstitutional conflagration of tyranny and despotism. I would fight a red flag law based on hearsay tooth and nail.
The next thing it would be valuable to define and understand is due process. A lot of arguments against red flag laws base themselves on the idea that if rights are impugned or suspended before facing a judge or undergoing a trial then due process has been flipped on its head. But this fails to reflect the current idea of due process.
Consider the following scenario:
An officer notices your license plate has an expired date. He has reasonable suspicion your license is not properly registered. He engages lights and sirens and pulls you over. So long as the officer is engaging in an investigation of what he believes to be a crime, you are not free to go. Because the officer reasonably believes you have committed a crime you must give him your driver license and vehicle registration. Your freedom of movement has been suspended. Certain aspects of your right to privacy have been suspended.
Next, the officer informs you that his system shows your car as having no valid insurance. He asks you to get out of the car and tells you to find another way home, as the car is going to be impounded for being on the road without insurance. Now, based purely on the officer’s discretion, your property is being seized.
Next, you watch as the officer engages in a routine impound inventory, searching and cataloging all your possessions in the car. Once again, your right to privacy is being suspended and, since he’s cataloguing your possessions for consistency of record and not searching for evidence pursuant to a crime, protection against search and seizure without a warrant does not apply.
You receive your court date and appear before the judge. You present him with the proof of your insurance and it is confirmed the system was in error when it showed the vehicle as not having insurance. The judge dismisses your case and you get your car and your possessions back.
This isn’t the “new due process” that many talk about when considering red flag laws. Agree with it or not, it is the old due process. It has been a consistent feature of our justice system for some time that reasonable suspicion is grounds for the suspension of certain rights and probable cause is grounds for suspension of nearly all rights (you can be arrested and held in jail on probable cause). As it specifically relates to firearms, it has been the case since 1968 when Terry v Ohio was heard by the Supreme Court that an officer can perform a protective search for weapons and temporarily seize firearms during the course of an investigation, even in the absence of probable cause for arrest.
A properly enacted red flag law essentially extends the idea of temporary seizure from Terry v Ohio to the situation of a credible report of premeditation to commit mass murder or suicide. So long as the subject is allowed a speedy hearing and can face his accusers, due process is preserved. Due process has never required a conviction before anything can be done. People are arrested, property is seized, and rights are temporarily suspended every day before any judge or jury gets involved.
Red flag laws can easily be worded to ensure that hearsay is not permissible as evidence and to ensure that the due process remains in effect in ways it always has. If the language of a red flag law mandated that the complainant must appear before a judge and offer credible first-hand testimony to trigger the red flag and if the subject is afforded a court appearance within 24 hours to face his accuser and afforded the ability to refute the claims, hearsay would be inadmissible and due process would be preserved. This process would not only be consistent with established due process but actually involves protections that are above and beyond similar temporary suspensions of rights and privileges.
Now, I appreciate the arguments that present laws would provide sufficient protections to stop mass shootings if they were fully enforced. I’m well aware that, for example, the vast majority of straw purchases and other violations of current law are grossly under-investigated and rarely prosecuted. The question of whether new laws are needed when current laws aren’t enforced is a proper question to ask, not only in the circumstances of gun violence but in all circumstances of criminal activity.
But the reality is mass shootings continue to happen and they appear to be doing so with more and more frequency and visibility to the public. I agree there are far more complicated factors behind this tragic trend than simply access to firearms, but the simple fact of the matter is that these crimes are turning public opinion away from gun rights and towards gun control. We must offer more than the status quo if we are to preserve our rights from future encroachment. Red flag laws provide fertile ground for workable solutions that enable the system to go after those with criminal intent, instead of trampling on the rights of the law-abiding.
Now, I know there will be some heavy pushback to my support of red flag laws, but it should be understood that when I say I would consider and support red flag laws, there are some heavy requirements placed upon that possibility.
Firstly, and most importantly, I would never support a federal red flag law. This is a form of law, like protective and restraining orders, which should only be enacted at the state level.
Secondly, I would only support a red flag law that bases itself on probable cause of premeditation. The law would have to specifically define this form of probable cause to ensure a clear danger actually exists, much in the same way involuntary admission to a medical facility must accompany statements of clear evidence that the subject is a "danger to themselves and others."
Thirdly, the only people that should be able to trigger a red flag should be family, cohabitants, and people in "positions of trust." If the language of the law allows for reporting which can lead to "swatting" type incidents, I would oppose it.
Fourthly, anyone seeking to trigger a red flag should have to appear before a judge and demonstrate good cause for the red flag to go into effect. No anonymous tipping, no hotlines, no web pages. If the matter is serious enough to temporarily suspend rights then the complainant should be ready and willing to face a judge and make their case.
Finally, the subject of a red flag should be afforded a court appearance to contest the order within 24 hours. Any longer than that and I would consider it a breach of due process. If the red flag is overturned, the subject should be able to request false flag damages and the complainant should face the possibility of fines in the case of egregious misrepresentation.
Again, I’ll reiterate, most of the red flag laws currently enacted in Democrat-controlled states do not meet my threshold of support. And, I’ll concede that most Democrats will probably be unwilling to moderate their demands to meet my threshold of support. But I honestly believe there is a path forward where red flag laws could be crafted in a way sufficient to provide an early warning mechanism for would-be mass shootings and suicides that involves clear safeguards to ensure it is not abused to harass law-abiding citizens.
Yes, any law can be abused and we should exercise constant vigilance when considering if a law could be used to infringe on the rights of the law-abiding. But that fact should invite careful and deliberate consideration, not a dismissal of any and all ideas. My observation is that red flag laws are low-hanging fruit that is going to get a lot of support across the country. It would be folly for supporters of the individual right to bear arms to walk away from the table and allow Democrats to exclusively set the narrative and write such laws as they see fit.
I want to engage in the process of crafting and debating red flag laws in order to ensure only criminal behavior is targeted and that they add increased protection of the rights of the law-abiding. If the language of a red flag law proves to be as bad as some fear it might, I can walk away from the discussion and oppose the proposed law.