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
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.
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.
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.
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.
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Is The Best Direct Cash Relief Plan Found Outside the Halls of Congress?
With every hour passing it appears that the leadership and members of the United States Senate are exposing their inability to manage and provide the necessary help to assure that America’s families and workers are able to survive the public health and economic crisis that most are experiencing from the current Chinese Virus pandemic.
In the last few weeks Senate leadership from both parties have put forward plans that appear to be means-tested bailouts for big corporations and banks but fail to address putting cash directly into the hands of the majority of Americans.
In the same time frame Americans have seen their retirements and investments tank to the tune of trillions lost, experienced tens of thousands of lay-offs, the local public schools have closed for the foreseeable future, local police are unable to stop looting, and new polls show that 71% of Americans have been negatively harmed by the Chinese Virus pandemic.
And where our Senators have failed, it seems President Trump has not.
Instead of just listening to the lobbyists and policy influencers of the inner halls of Congress, President Trump is open to the advice and ideas of people outside of government, people who are not deeply rooted in the D.C. Swamp, and those who actually give a damn about what happens to Americans.
In a recent Tweet Eric Bolling, a bestselling author and conservative political commentator said that he had a “comprehensive conversation” with President Trump about a direct cash relief effort that Bolling has labeled “Plan2020”.
The idea behind “Plan2020” is that every American family who makes less than two hundred thousand a year in income would receive a debit card with $2300 on it. The card would be used to cover food, gas, medical needs, transportation costs, and other necessities that Americans may need during the current crisis.
The “Plan2020” card would be a means of sidestepping any industry bailout while assuring local economies receive a much needed boost.
The interesting catch behind the “Plan2020” cards is that the funds on the cards expire after thirty days but will be reloaded if the President continues the national emergency and it would be a form of nontaxable income.
On Friday long time Trump associate Steve Bannon endorsed the “Plan2020” card idea on his “War Room: Epidemic” podcast calling it a way “that cash is forced back into the system, back into the hands of the little guy”.
Understandably there are critics of Mr. Bolling’s idea, but unlike the plans that are being formed deep inside the D.C. Swamp, his “Plan2020” correctly provides a bailout for America’s families and local economies instead of multi-billion dollar corporations, many who have connections to Communist China.
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