Red Flag Laws and Individual Rights

Red Flag Laws and Individual Rights

Historically, the synonymous concepts of liberty and freedom were assumed to be the inherent right of every citizen born in our country.  Not so much these days.

In my home state of Colorado recently, the Democrat-controlled legislature signed a ‘red flag’ bill into law.  Joining fourteen other leftist-controlled states, Colorado’s ‘red flag’ law enables the forceful removal of a citizen’s firearms. My state represents another win in the left’s ongoing crusade to separate Americans from their personal liberty.

On the surface, ‘red flag’ laws appear reasonable.  When a person exhibits warning signs they are an extreme danger to themselves and others, the best course of action is to intervene by taking away their arms.  Common sense, the Left argues.  After all, if a court determines a person poses a societal risk, forcibly seizing their firearms reduces that risk.  Right?

Unfortunately, history screams of ‘well-intentioned’ legislation by the left that resulted in unintended negative consequences.

The mortgage crisis that began in 2007 was a direct result of ‘well-intentioned’ Democrats.

The Clinton Administration and its HUD Secretary Andrew Cuomo expanded the 1977 Community Reinvestment Act forcing banks into lending money to “underserved” communities for home purchases.  Thousands upon thousands of low-income families, lacking the finances to pay their mortgage, found themselves under crushing debt and adjusting to life lived out of a car. The resulting near-collapse of the banking system was the trigger for 2008's Great Recession. Thanks to Democrats, our nation endured nearly a decade of economic pain and toil recovering.

America’s stifling welfare programs that keep low-income citizens shackled in systemic oppression is an unwanted gift from Democrats.  The far-reaching catastrophe that is ObamaCare was delightfully brought to you by Democrats.  On and on the seemingly well-intentioned but calamitous legislation from the left continues.

We can add ‘red flag’ laws to their gargantuan stink pile.

There are inherent risks associated with living in a free society.  One of those risks is that free people will harm other free people.  Is freedom worth the risk?  Of course it is!  The reason is because the alternative is far worse.  In a society where government controls every aspect of life, particularly the ability to own a firearm, dead bodies are piled upon each other at the hands of government elites who hold little regard for freedom of the masses.

Loss of liberty is the central contention against ‘red flag’ laws being enacted state by state.  The law chips away at personal freedom.  What the left refuses to accept is that liberty as an irrefutable right is foundational to the United States Constitution.  The Constitution, so right and moral, has never stopped the left from snubbing their collective nose at yours and my freedoms.  In legislative bills around the country every year, the left demonstrates that they prefer subjugation over personal liberty. California is an enduring example of citizens actually embracing subjugation by government. Imagine that.

Nowhere is subjugation more plain than in the Democrat’s efforts to legislatively institute ‘red flag’ laws.  The harsh truth is that ‘red flag’ laws are an affront to the United States Constitution.

A citizen’s right to own and bear arms is guaranteed by the Second Amendment.  The left infringes upon this basic right using the tactic of incrementalism.  Each time the tactic is employed, it is accompanied by the deceitful narrative of protecting people’s lives.  The left’s goal isn’t protecting lives, it is controlling lives -- subjugating them.  As long as Americans are armed, subjugating them requires taking the incremental road while leftists prefer the expressway.  Owning a firearm is a basic right of a free society the left would prefer to see you without.

The Second Amendment states, “the right of the people to keep and bear arms, shall not be infringed.” Look up the word infringe and you’ll find it means “to limit, undermine or encroach upon.” Yet ‘red flag’ laws do exactly that -- undermine your right to keep and bear arms.

If you live in a state that has enacted a ‘red flag’ law, an individual can file an affidavit detailing reasons they believe you represent an extreme risk to yourself or society.  Whether or not the accuser’s affidavit is based in truth is irrelevant.  The simple act of an affidavit filed against you (without you being notified, by the way) means a judge will determine whether or not to issue an extreme risk protection order (ERPO). Never mind that the affidavit can be based on an accuser’s one-sided, possibly nefarious claims.  While the law states that clear and convincing evidence must be produced, the standard for clear and convincing evidence is remarkably low.  Once an ERPO is issued, law enforcement will then seize your personal property, in this case, your firearms.

Do you get to defend yourself against the accusation prior to your property being seized?  Nope.  The decision to seize your property is at the discretion of a judge who has never met you nor heard your defense.  Notice the absence of something critical that every American citizen rightfully expects: due process.  Due process is a right protected by the Fifth Amendment.

The Fourth Amendment guarantees our right against unreasonable searches and seizure of property.  When a person has committed no crime nor is in the process of committing a crime yet their personal property is confiscated without due process, this is the classic definition of unreasonable seizure.

Absurdly, proponents claim ‘red flag’ laws include due process.  How so when personal property has already been seized?  Because “due process” lies in the Machiavellian wording of these laws.  The person whose firearm has been seized may petition the court carrying the burden of proof they are not a risk.  Disproving guilt is a legal standard more extraordinarily demanding than establishing guilt beyond a reasonable doubt.

In other words, guilt is presumed and the accused must prove otherwise.  What reasonable jurist who has studied law would consider presumed guilt and due process as equal?  None!  Yet petitioning the court after your property has been seized is the argument the left maintains when claiming ‘red flag’ laws provide due process.

The key, however, lies in the word, reasonable.  When it comes to your constitutionally guaranteed right to own a firearm, the left is exceptionally unreasonable.  Law be damned.

In the absence of true due process, any rights you possess under the United States Constitution are subject to any manner of tyrannical legislation the left can envision.

There’s one huge problem with the liberty-limiting edicts leftists impose.  It is found in Article VI, Paragraph 2 of the Constitution.  This Supremacy Clause establishes and recognizes in perpetuity that the United States Constitution supersedes all other federal, state, and local laws.

‘Red flag’ laws brazenly violate the Second, Fourth, and Fifth Amendments of the United States Constitution.  Since the Constitution is the law of the land superseding all other laws, ‘red flag’ laws cannot and should not ever be enforced.

It is highly foreseeable that a bold citizen will step up and go to court fighting a state’s ‘red flag’ law.  They may even take the fight all the way to the Supreme Court.  It will become clear in that deciding moment what the future holds for yours and my personal liberty.

 R. Quinn Kennedy