Red Flag laws are promoted as a way to help prevent mass shootings. Putting aside the numerous times “red flags” have been ignored and the evidence that barring someone from legal access to firearms is but a speed bump to someone willing to kill, let us focus on the constitutional issues many of these laws present and the rights of millions of law abiding Americans that will be violated. To paraphrase Elizabeth Barrett Browning, “Constitution, how do we violate thee? Let me count the ways.”
2nd Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Let’s start with the most obvious. It never ceases to amaze me how the phrase, “The right of the people to keep and bear arms shall not be infringed”, simply cannot be understood by such a large swath of the American people. I understand there are millions of you who don’t like the 2nd Amendment, but pretending it’s not there or that it says something it doesn’t isn’t righteous, it’s lazy, arrogant, and tyrannical. What if we decided that one of the rights you cherish would be restricted because someone thought you might use it badly? What if the government decided you needed a permit to publish on the Internet because someone might use “hate speech”? Or your right to assemble could be taken away because a family member said you might become violent? If you’re going to strip Americans of their right to keep and bear arms, at least have the courtesy and honor to do it legally (through a constitutional amendment), instead of underhandedly, with illegal laws and ridiculous claims about how they will protect us.
4th Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
We all have a right to be secure, in both our homes and our property, and against unreasonable search and seizure. But how secure are you when someone can make an unsubstantiated claim and your house is entered and your property seized? “But, Paul,” you say, “they have a warrant.” But what is that warrant based on? Has someone sworn or affirmed that you’re making plans to do something illegal? Do they have evidence you’re preparing to do harm? No. At best, someone “thinks” you “may” be dangerous. Are they prepared to swear to that in court? Because if they are not, then the warrant is not valid. What if they tell law enforcement and then swear to it in court? That’s called “hearsay evidence”, and again, the warrant is not legal.
And of course, no human being has ever lied to get back at someone they’re mad at, right? I mean, no one in a nasty divorce or custody battle would say a spouse is a danger out of spite, would they? Has anybody ever called the police because they don’t like what their neighbor is doing even though it is perfectly legal? And there’s never been a situation where someone has falsely made a 911 call, saying someone is threatening people because they didn’t like that they possessed a firearm? If you believe all that, I have a bridge in San Francisco to sell you.
What happens when the government no longer needs reasonable cause to search and seize? If this right can be denied for gun-related accusations, what about fertilizer (you could be making a bomb), antihistamines (you could be making drugs), or dairy products (you could have purchased raw milk).
5th Amendment
No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
You not only have a right to your property, but the government cannot take it without “due process of law”. Notice, it’s not just the process of law, but due process. That means “that which law or justice requires to be paid or done“. Is it justice taking someone’s property without proof of their bad actions? Or is it right to punish someone for something they have not, and may not, do? If all it takes is an accusation, then why stop at taking property? How long before an accusation without proof is enough to put you in jail, because you might be a danger to society?
Will we have drunk driving red flag laws? Will your car be taken because a friend or relative is afraid you might get drunk and drive? What if they take your smartphone away because someone said you might text while driving or not use a hands-free device while taking a call? When people realize that more people are killed with fists and feet, will they come and take those as well, just because someone accused you?
14th Amendment
… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. …
If you are a citizen of the United States, states are not allowed to abridge your rights or your privileges and immunities. Yet states are passing laws that do so, and I understand Congress is considering one that will directly abridge the assumption of innocent until proven guilty. With red flag laws, you are assumed guilty because someone “believes” you might be dangerous. Apparently those who represent us in state legislatures believe your friends, family, and neighbors are like the pre-crime unit from Minorty Report, able to predict crime and assumed to be infallible. Now, if this was Napoleonic France, that presumption of guilt was expected, but this is America, and we’re supposed to be better than that. The government is supposed to prove its case before punishing someone, and it’s supposed to prove we’re guilty before taking our property and our liberty as well; we’re to have the same protections under the law as everyone else. If the government can take your home without proving you’re guilty, why can’t they take your gun? If they can’t take your car without proof, why can they take your best tool for self-defense? If you can be declared a second-class citizen or if your rights can be declared null and void just because you exercise one of them, what is to stop the government from declaring all of them null and void? What if your rights could be taken away for petitioning the government for a redress of your grievance? What if the laws no longer protected you if you asked for a lawyer or confronted the witnesses against you? What if they passed laws that prevented you from exercising your right to vote because someone didn’t like the way you used it? And before you think this is impossible in America, remember that Jim Crow laws were passed not only because blacks were voting, but because they were voting against the established party.
Conclusion
Red flag laws are nothing more than an emotional reaction to an irrational fear of people who own firearms. They are unconstitutional, and by that fact, illegal. Even worse, they are a giant step away from liberty and freedom toward tyranny and despotism. If friends, family, and even law enforcement, can take away any of your rights by simple accusation, how long before we become a nation of informants, using that power to destroy the lives of others? How long before we walk around wondering which of our neighbors is going to inform on us not because of something we have done, but because of some fear they have, or worse yet, some vendetta?
Now is the time to exercise what you have learned here at The Constitution Study. Contact your state elected officers, ask them if there are any red flag laws being worked on, and urge them strongly to oppose them. Show them this article and the number of rights they would be violating if they supported a red flag law. And let them know that if they will not uphold their oath to support the Constitution, they are unfit to hold elected office and you will work to have them removed. Let’s start making politicians more afraid of the Constitution than a special interest group. Let them worry more about what the citizens’ think than what their donors think. If we wish to keep our rights, we must defend them against all hazards, and especially politicians.
The liberties of our Country, the freedom of our civil constitution are worth defending at all hazards: And it is our duty to defend them against all attacks.
Samuel Adams
