One of the proposals it looks like may come out of the Senate is a measure that will encourage states to pass their own red flag laws.
The problem is that many on the gun rights side of the debate have long argued that red flag laws are unconstitutional. After all, they involve taking people’s property without due process.
Over at the Washington Post–because of course it would be at WaPo–an op-ed tries to tell us we don’t know what we’re talking about.
“Red flag” laws, which allow guns to be temporarily taken from people who pose a risk of harm to themselves or others, are one of the few gun-safety regulations that currently have bipartisan support. “I’m generally inclined to think some kind of red-flag law is a good idea,” Sen. Roy Blunt (R-Mo.) said last week, after the school shooting in Uvalde, Texas. Key senators have told reporters it’s possible an agreement could be reached this week on legislation that would include a provision incentivizing more states to pass such laws.There is strong popular support for red-flag laws — also known as extreme-risk laws — in both parties, and more than a dozen states have adopted them in the past few years alone (bringing the total to 19 plus the District of Columbia). Social science research suggests that they work, most strikingly in preventing gun suicides.So what prevents their wider adoption, including at the federal level? Some gun-rights advocates and their allies in Congress say they violate the due process clauses of the Fifth and Fourteenth Amendments. “Depriving citizens of Life, Liberty, or Property, without Due Process, is a clear violation of our Constitution,” Rep. Thomas Massie (R-Ky.) tweeted last week. “Every member of Congress swears an oath to ‘support and defend’ the Constitution. Voting for, or introducing, Red Flag Laws is a blatant violation of that oath.”But such criticisms are off base. Politicians considering red-flag laws, whether in Congress or state legislatures, should do so based on an accurate understanding of what the Constitution requires. It indeed guarantees “due process of law” whenever the government seeks to deprive a person of “life, liberty, or property.” But the basic design of existing extreme-risk laws is fully consistent with constitutional commands, as we showed in a recent law review article.
The authors make that claim, yet I can’t help but notice that both in this op-ed and the linked law review article, they focus on the alleged popularity of these measures. As if that has any relevance to the point they claim they’re trying to discuss.
What’s constitutional and what’s popular are not now, nor have ever been the same thing.
But is there a point? Do red flag laws somehow adhere to the Constitution?
I remain unconvinced. Yes, we have a couple of lawyers pushing a law review article, but something I’ve noticed is how lawyers can twist precedent to justify pretty much anything they want. I mean, how many lawyers are doing just that to justify gun control, even after rulings like Heller and McDonald?
What remains true for me is the plain understanding of due process with regard to red flag laws.
Someone–far too often, anyone–can claim you’re a danger to yourself or others and have a judge rule your guns are to be taken away without you having an opportunity to defend yourself or face your accuser.
The above authors seem interested in likening these to domestic violence restraining orders which are also issued ex parte, but the difference is that a restraining order only limits your proximity to another person. It doesn’t involve law enforcement coming to your door and seizing your property and depriving you of your Second Amendment rights over little more than a rumor.
So regardless of whatever convoluted legalistic reasoning they concocted, there’s little doubt here that yes, red flag laws are unconstitutional and that they should be opposed with every fiber of our being.