What’s At Stake With Red Flag Laws?

Do we appreciate our American Bill of Rights? It’s a unique document, ratified in 1791 as the first amendments to the U.S. Constitution. It was written because of an ongoing argument about the character of man. 

The Federalists believed American politicians were respectable and reliable leaders – and always would be. They believed our government would never mess with rights given by God. They were convinced a Bill of Rights was an unnecessary addition to our Constitution. But the wiser Antifederalists knew political corruption was a reality.  So they insisted on a Bill of Rights, to protect all future Americans from government overreach. Thomas Jefferson explained it like this: “In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”

Thanks to the Bill of Rights, it is impossible for American politicians to deprive Americans of their right to own personal weapons – unless those politicians willfully break the law. In a vain attempt to end gun violence, the panic-stricken American media demands that Congress defy the Constitution and disarm free Americans. So will American politicians become unthinking slaves of shifting public emotion? Or will they stand firm on their oaths of office and defend the Constitution?  

Today’s Fearful Majority

Judge Andrew Napolitano has written nine books on the US Constitution. He realizes that if US legislators cave to pressure and pass Red Flag gun confiscation laws, “No liberty — speech, press, religion, association, self-defense, privacy, travel, property ownership — would be safe from the reach of a fearful majority.”  

He also explains why the Supreme Court ruled twice that citizens can own the same weapons the government has: “Because the Second Amendment was not written to protect the right to shoot deer. It was written to protect the right to shoot at tyrants and their agents when they have stolen liberty or property from the people.” 

This truth should be enough to stop every gun confiscation law. But it’s not. In the wake of violent acts, the media screams, “Do something!” and the voters amplify the screaming. Thanks to a perfect storm of voter fear, misinformation, and media pressure, the politicians begin to tremble.  

Hoisting the Red Flag of Pragmatism

Over the din of chaos, the Left offers a brilliant pragmatic solution to reassure nervous gun owners: America just needs to disarm mentally unstable gun owners before they harm themselves or others.  

This sounds so practical. It sounds like good governance and public safety. Fearful politicians think it sounds like a judicious solution. But it is not judicious. It is illegal. As Constitutional Law professor Kris Kobach points out, Red Flag laws commonly violate the law in four ways:  

1. The law would allow confiscation based on the testimony of one unrelated person. 

Frivolous accusations can be made against any gun owner for reasons of spite or political bitterness. An angry ex-boyfriend or college roommate could have an innocent citizen disarmed on fraudulent charges.  

2. The law would enable the seizure of guns without any hearing at all. 

This is a clear denial of due process. The Fourth Amendment makes clear that a person’s liberty and property (including his liberty to own and use firearms) are secured by due process.  

3. The law would permit a very low standard of proof. 

Even at the formal hearing, the standard of proving the gun owner’s deficiencies is far below the “beyond a reasonable doubt” standard used in criminal trials.  This is not due process of law.  

4. The law would shift the burden of proof to the gun owner. 

Once in place, the confiscation order becomes difficult to remove. To get his weapons back, the gun owner must prove he does not pose a threat to himself or others. Proving a negative is nearly impossible. A third violation of due process.  Legislators considering a Red Flag law should also consider these points: 

  • Every 13 seconds, Americans use firearms successfully to stop crimes against themselves or others.  
  • The vast majority of mass shootings occur in gun-free[4] zones.[5]
  • Data from 1970 through 2017 shows that Red Flag laws have no significant effect on murder, suicide, mass-public-shooting fatalities, robbery, aggravated assault, or burglary. These laws do not save lives.[6]  

Our Founders deliberately armed every man age 18-45 in The US Congressional Militia Act of 1792.  They would never have supported Red Flag laws… laws requiring Americans to inform on one another in order to strip basic rights from their neighbors.  

The Founders knew that Constitutional rights are God-given rights. The Constitution only established them — it didn’t create them. As such, they cannot be touched by legislators. They cannot be infringed.  

The Solution

So what can you do? Engage the threat. Contact your legislators and tell them not to be bullied by the hysteria, virtue signaling, or polls. Tell them to vote against all Red Flag laws. Remind your local judges that they can’t issue a gun confiscation warrant on the basis of a Red Flag law; remind the sheriff or chief of police that he cannot order officers to confiscate an innocent citizen’s guns; and remind sheriff’s deputies or city policemen not to obey orders to confiscate fellow citizens’ guns on the basis of a Red Flag law.  

They swore an oath to defend the Constitution. Tell them to keep their word.

[1]  660 individual murders in Chicago in 2017. That’s nearly twice the number from mass shootings in the whole country and six or seven times the number murdered by random psychos mass-shooters. 

[2]  There are more privately owned guns in the United States than ever before and the number of murders has been declining for decades and has been at or near a multigenerational low for several years. About 100 deaths were the result of the random, psycho-killer shootings that dominated news coverage for days and weeks at a time. Mercifully, those are quite rare.

[3]  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3316573

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