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OP-ED: There’s No Such Thing As A “Good Red Flag Law”

Red Flag Laws by definition do not include due process.

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On September 28, 2019, The Daily Signal published an article written by Amy Swearer of the Heritage Foundation describing a hypothetical version of a “Red Flag” Gun Confiscation law that would be acceptable to gun owners.

The article argues that if such a law incorporated “meaningful” due process and “safeguards against abuse or misuse,” it would become an acceptable compromise form of gun control.

“Red Flag” with due process is impossible

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The problem with Swearer’s premise is that “Red Flag” laws, by their very nature, are the antithesis of due process. They require guns to be taken and constitutional rights to be deprived by the government before anything that resembles an adjudicative process kicks in.

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There is no way to preemptively confiscate someone’s private property or deny Constitutional rights based on a mere accusation while protecting meaningful due process.

Of the 17 states that have already passed “Red Flag” Gun Confiscation laws, none provide for pre-seizure due process.

In fact, even policy makers in Ohio, who initially supported the concept of “Red Flag,” found the actual process of drafting one in response to the Dayton shooting to be “unworkable.”

In every state that does have a “Red Flag” law, the subject may only challenge the issuance of the order and beg for their rights and their guns back after seizure of the firearms has occurred and after the initial ex parte (one sided) order is issued against them.

This is not adequate due process; rather, it should be a fatal flaw for any policy expert who claims to support the Constitution.

In states that have “Red Flag” laws, the processes that kick in after guns have been seized are a tall order for anyone maliciously or falsely stripped of their Second Amendment rights, starting with the immense legal fees associated with defending cases like this. Only one state’s law, Colorado’s, (which has not yet gone into effect) theoretically provides for an attorney at state expense to persons who are indigent. None provide for expert witness help, like a psychiatrist or psychologist, at state expense, for those who cannot afford one.

According to law professor Donald Kilmer, “Experienced counsel to defend you in a ‘due process’ hearing will run about $15,000 in fees. If you lose and want to appeal, expect to spend another $25,000 to $100,000 in fees and costs. And even with all of that, you might still lose.” 1

“Red Flag” laws, such as the one in Colorado, have more lenient standards of evidence for initiating gun confiscation orders (“preponderance of the evidence”) than they do for one to get their rights restored (“clear and convincing evidence”).

That is like trying to convince a judge to overturn an order already set by another judge, with the deck stacked against you, after a guilty verdict has already been reached.

Ripe for Abuse by accusers and bureaucrats

No matter how many so-called “safeguards” against abuse by the accuser are implemented, it would be impossible to prevent abusive partners and criminals from using “Red Flag” laws to disarm their partners, neighbors, and potential victims.

In most states, there is no recourse for the victims or punishment of the perpetrators of a falsely filed “Red Flag” complaint. Experienced lawyers should already know that laws against perjury are not enforced. Case law on perjury suggests even if a “Red Flag” proposal included the addition of such a provision it would rarely be enforced.

States that did pass “Red Flag” laws heard testimony from women who feared for their lives that ex-partners would file one of these orders to disarm them.

Conversely, a partner who files an order against an abusive spouse may find their own firearms — and only means of self-defense — are subject to the gun confiscation order as well.That’s because under “Red Flag” laws, firearms belonging to innocent third parties, (not the accused) such as household family members, can also be seized if the police think the subject of the order can access them.

“Red Flag” laws also open the door for overzealous bureaucrats to misuse these laws to push their own anti-gun agendas.

Florida’s “Red Flag” law has already been used against numerous children as young as eight years old, (in one case, because the child was reportedly prone to frequent temper tantrums), despite the fact that it is already illegal for children in Florida to own firearms.2

This begs the question: what will happen to these children’s gun rights when they become adults? Have they lost their gun rights permanently? And was that the intention of the anti-gun left all along?

It is hardly farfetched to assume these laws will be used by corrupt government officials to strip innocent citizens of their gun rights. It’s already happening.

Dangerous for law enforcement officers and gun owners

In a different article, Ms. Swearer also claimed that serving “Red Flag” orders is not any more dangerous to police officers than normal police work.3

However, that opinion is hardly shared by the law enforcement community.

Colorado Sheriff Steve Reams, an opponent of “Red Flag” laws, puts it this way: “Quite frankly, it’s putting my officers in a position where I don’t think it’s safe for them either.”4

No officer wants to be the one to confront a gun owner and demand they surrender their legally owned firearms. In Maryland, this resulted in the preventable death of one gun owner on his own doorstep in 2017.

Spending precious law enforcement resources to seize firearms from legal gun owners only diverts resources away from patrolling the streets and stopping truly dangerous individuals. 

Good guys don’t draft gun control  

Ms. Swearer is making the classic mistake of trying to compromise with, and appease the gun control advocates by trying to come up with an “acceptable” way to infringe on Constitutional rights.

As the history of gun control in the United States shows us, our freedoms are never revoked all at once. Rather, a death by a thousand cuts strategy, implemented by the gun grabbers, has gradually reduced the rights of law-abiding citizens to keep and bear arms.

The National Firearms Act of 1934, the Gun Control Act of 1968, the Hughes Amendment, the Gun Free School Zones Act, the Brady Act, and many others are just some of the examples of the politics of appeasement.

Remember Winston Churchill’s famous quote “An appeaser is one who feeds a crocodile, hoping it will eat him last.”  But it is troubling to see a senior member of a pro-Constitution organization playing right into their hands.

Pro-gun organizations like the National Association for Gun Rights do not waste valuable time trying to make bad bills better. Instead, those championing the Second Amendment should be working to defeat “Red Flag” legislation, as was the case when bills in places like North Dakota, Utah and New Mexico were scrapped this past spring.

The truth of the matter is, the only good “Red Flag” bill is no bill at all.

Hopefully Ms. Swearer and the Heritage Foundation will reverse course and come to the same conclusion, before the anti-gun left twists their position into a blow to freedom.

Ryan Frasor is a senior contributor and Firearms Policy Specialist for the National Association for Gun Rights, a 501(c)4 organization representing 4.5 Million Second Amendment members and supporters nationwide.

References:

1= Kilmer Donald. The enforcement problems with gun grabbing ‘red flag’ laws are even worse than you think. Washington Examiner. Aug 17th, 2019.

2= Knighton Tom. FL Red flag Orders Issued to Shocking Number of Children. Bearing Arms.com. Oct 3rd, 2019.

3= Swearer Amy, Answers to Common Questions About “Red Flag” Gun Laws. Heritage.org. Aug 16th, 2019.

4= Manchester Julia. Colorado Sheriff warns ‘red flag’ gun laws could put officers at risk. The Hill. April 8th, 2019.

Around The World

Not all Shi’a-Majority Nations are the Same

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The recent alleged arson attack on the Tomb of Esther and Mordechai, a Jewish holy site in Iran, was indicative of the ever-rising rate of anti-Semitism and broader religious intolerance in the Islamic Republic. The recently released United States Commission on International Religious Freedom (USCIRF) annual report had highlighted Iran’s anti-Semitic targeting of its small Jewish population as well as other minorities including followers of the Baha’i faith; the most persecuted faith in Iran.

The USCIRF described that it documented “a particular uptick in the persecution of Baha’is and local government officials who supported them in 2019. Iran’s government blamed Baha’is —without evidence — for widespread popular protests, accusing the community of collaboration with Israel, where the Baha’i World Centre is located. Iran’s government also continued to promote hatred against Baha’is and other religious minorities on traditional and social media channels.”

U.S. Special Envoy to Monitor and Combat Anti-Semitism Elan Carr has said that “anti-Semitism isn’t ancillary to the ideology of the Islamic Republic of Iran. It is a central foundational component of the ideology of that regime, and we have to be clear about it, and we have to confront it and call it out for what it is.” After the Tomb of Esther and Mordechai was set ablaze last weekend, Carr reiterated these statements and called Iran the “world’s chief state sponsor of anti-Semitism.”

In 2016 I wrote, “According to Articles 12 and 13 of the Iranian Constitution, all branches of Islam and Christianity have the right to worship, as do Jews and Zoroastrians, within the limits of the law there. However, converting away from Islam to any other religion is considered haram, or forbidden, and in many cases, could result in execution.”

Anti-Semitism is a historical reality in Iran’s strict brand of Shi’a Islam, which emphasizes the separation between believers and non-believers, expressed in terms of purity versus impurity. The Jewish People Policy Planning Institute explains that in Iran, “under the influence of Zoroastrian traditions, the Jews were considered physically impure and untouchable (najasa). Jews were also prohibited from inheriting from Shiites, whereas the opposite was allowed. A Jew who converted to Islam was entitled to the entire inheritance. Shiites were not allowed to marry Jewish women, except for in temporary marriage (mut’a), which is an inferior and exploitative type of concubinage.”

It is also a little-known fact that the country name of Iran is derived from the ancient Persian word Arya, a linguistic predecessor of the modern European term Aryan. Further, Armenian Nazi collaborator Garegin Nzhdeh (1886-1955) is the founder of the racist Tseghakronism movement, whose ideology is reminiscent of the Aryan supremacy espoused by Nzhdeh’s Nazi comrades. Today, Nzhdeh’s brand of Aryan and anti-Semitic ideology is palpable in both Armenia and Iran, neighboring countries where the Anti-Defamation League has documented that more than half of the populations hold a series of anti-Semitic views — at even higher rate in Armenia (58 percent) than in Iran (56 percent).

At the same time, it is important to note that the majority of Iranians are secular and the regime does not necessarily represent them, or their values. In fact, the Iranian government persecutes its Azerbaijani, Arab, and other citizens from minority populations.

Yet a stark contrast with Iran is found in its Shi’a-majority neighbor, Azerbaijan, which has strong relations with Israel and protects its Jewish citizens as well as other religious and ethnic minorities.

Southern California-based evangelical pastor Johnnie Moore has elaborated on the telling differences in the realm of religious tolerance between Azerbaijan and Iran, noting that Azerbaijan is “a country where Sunni and Shi’a clerics pray together, where Evangelical and Russian Orthodox Christians serve together, and where thriving Jewish communities enjoy freedom and total security in their almost entirely Islamic country.” He has also called Azerbaijan “a model for peaceful coexistence between religions.”

During my own visit to Azerbaijan, I observed and documented this first-hand. I believe that Azerbaijan is a nation that bears the torch, and burden, of bringing religious freedom to its less tolerant neighbors in the region, like Iran.

Perhaps the most dramatic indicator of Azerbaijani tolerance is the post-Soviet state’s special relationship with its Jewish community and with Israel. Last November, Azerbaijan unveiled a statue in honor of the nation’s Jewish war hero Albert Agarunov (1969-1992). Although Agarunov was killed in battle, his legacy remains a powerful symbol of Jewish integration and pride for his Muslim-majority country.

Israel and Azerbaijan have closely cooperated for more than a decade in the realms of security, energy, and tourism. Most recently, Azerbaijan sent its Finance Minister Samir Sharifov to this year’s American Israel Public Affairs Committee (AIPAC) policy conference, where Sharifov said that the country’s “cooperation with Israel is not limited to oil supply; we are interested in widening cooperation in defense and the transfer of technology.”

Sharifov also read remarks from a letter to AIPAC by Mehriban Aliyeva, the first vice president of Azerbaijan, who wrote, “It is gratifying that our former compatriots of Jewish origin, living nowadays in the United States and Israel, have maintained close ties with Azerbaijan and contribute to the strengthening of our relations with these countries. We are grateful to them.”

How can Azerbaijan govern and act so differently from its Shi’a neighbor? Iran is a theocracy that mixes religion and state more thoroughly than any other country in the world. In contrast, Azerbaijan’s constitution affirms the country as a secular state and ensures religious freedom for its citizens. Azerbaijan is also facing its own human rights issues and working on progressing as a nation. However, the fact of the matter remains, though Iran and Azerbaijan share a border, the similarities between their governments largely end there. Not all Shi’a-majority nations are the same.

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