Lindsey Graham Ignores Due Process Realities With Red Flag Laws

Sen. Lindsey Graham is apparently one of the Republican fans of red flag laws. While President Trump may well have pointed out the big problem with them through a tweet about Chris Cuomo, not everyone got the memo. Among those, Sen. Lindsey Graham.


However, while defending his position, Graham is ignoring a lot of other things.

Over at Reason, they took note of some of those failings. In particular, Graham’s claim that red flag laws mean people get their day in court.

Graham did not mention that the standards for involuntary psychiatric treatment are notably stricter than the standards for taking away people’s guns under red flag laws. Under Florida’s Baker Act, for example, the state has to show by clear and convincing evidence “a substantial likelihood” that a candidate for commitment, because of “mental illness,” will “in the near future…inflict serious bodily harm on self or others, as evidenced by recent behavior causing, attempting, or threatening such harm.”

Florida’s red flag law, by contrast, authorizes a judge to issue a final gun confiscation order, which lasts up to a year (and can be extended), when there is clear and convincing evidence that “the respondent poses a significant danger of causing personal injury to himself or herself or others.” No psychiatric diagnosis is required, “significant danger” is undefined, the purported threat need not be imminent, and the judge “may consider any relevant evidence.” Those permissive standards help explain why Florida judges issue final “risk protection orders” 95 percent of the time.

“Nobody’s going to lose their gun unless they have their day in court,” Graham assured MacCallum. That is simply not true. All 17 states with red flag laws (and the District of Columbia) allow judges to issue preliminary gun confiscation orders without giving the respondent a chance to rebut the claims against him. The maximum length of such ex parte orders ranges from a week in Nevada to six months (for “good cause”) in Maryland. Fourteen days is the most common limit.


In other words, people are punished, then get their day in court after the fact. (Also, go read the whole thing. It’s good.)

To top it off, Graham said “the Second Amendment is not a suicide pact.” Of course, that term “not a suicide pact” is usually brought up whenever someone wants to cross the Constitution and are mad that some people aren’t letting them do it. In this case, it’s the Second Amendment. It could be the First or the Fourth Amendments just as easily.

However, what Graham isn’t accounting for with that particular turn of phrase is that it can be used to justify any gun control if someone feels so inclined, including a total gun ban. Those who oppose the Second Amendment routinely argue that we’re killing ourselves because we permit guns in private hands, so claiming “the Second Amendment is not a suicide pact” would seem a natural fit for such a person.

In fact, Graham could just as easily make the claim that the Due Process Clause isn’t a suicide pact either.

Graham knows he wants to violate the constitutionally-protected rights of law-abiding Americans. He just doesn’t want people like you to call him on it.


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