After the horrible carnage of the last two weeks, we have seen some folks and some organizations who claim to be staunch defenders of the Constitution and Bill of Rights fold like a cheap suit. Sadly, I always suspected President Trump would fold on gun rights, and this is not his first example of that. But what really took me by surprise was when Congressman Dan Crenshaw came out in support of “red flag” laws. First, as with all legislation, gun control laws should never be motivated by emotion but rather should be based on logic. Humans do stupid things when they are emotional, and people claiming to respect the Bill of Rights while pushing “red flag” laws is really stupid.
Let me start by saying I absolutely understand the desire to keep guns away from truly violent or mentally deranged persons. None of us wants a nutjob to get a hold of a gun and go on a killing spree. Let me say that again, because those who push gun control constantly say we feel otherwise: NONE of us, no matter how fervently we support the Second Amendment, wants some whackjob to grab a gun and start killing people. That said, many of us are not willing to throw away the rights of millions of people who have done absolutely nothing wrong on the off chance that it could possibly prevent some crazy guy from committing a crime.
Ignoring, for just a few moments, all of the violations of the Bill of Rights that are involved with “red flag” laws, the entire restraining order system is horribly susceptible to abuse, and that is the same system that is employed in these “red flag” laws. Need proof? Just ask any cop if there is rampant abuse of the current restraining order process, a process that requires a larger burden of proof than these proposed Gun Violence Restraining Orders (GVRO) or Extreme Risk Protection Orders (ERPO – from this point on I will refer to both interchangeably as GVROs).
Susceptibility for Abuse
A quick peek at the restraining order process, for those unfamiliar with it, might be helpful. The hearings for the initial restraining order, a Temporary Restraining Order (TRO), are conducted ex parte which means that one party, the accused party, is not present. This allows the accusing party to say whatever they want about the accused party without fear of being called out for lying. TROs are valid for a couple months until a hearing can be conducted for a permanent restraining order, a hearing in which both parties are supposed to be present. During the time between the granting of the TRO and the hearing, the restrained party, the party who was NOT present for the initial hearing, has had their rights impinged based on the unopposed words of another person. If the protected person, the person who applied for the TRO, lied on the original TRO application, they simply need not show up to the hearing date and the restraining order becomes invalid. During my 22 years as a cop, I never once was aware of a single person prosecuted for lying on a TRO application. Not a single one. There is zero deterrent to lying on the application.
Gun Violence Restraining Orders are granted in much the same way. Someone has concerns about an individual who owns guns and contacts law enforcement requesting a GVRO. Law enforcement takes the information provided to them before a court, in an ex parte hearing, and a judge either grants or denies the GVRO. The person providing the info to law enforcement can say whatever they want about the other person, and in California where GVROs are a real thing, just about anyone who remotely has contact with a person can be the source of that information, including coworkers or school mates.
Just this one aspect hopefully has you somewhat concerned, but hold onto your hats because it gets infinitely worse as we follow this bad idea down the rabbit hole.
Unless you have been living under a rock for the last decade, you have probably heard about all of the anti-gun, anti-conservative and anti-Trump protests that have occurred in some cities and on college and high school campuses across the nation. You are likely aware of the seriously anti-conservative, anti-gun leanings of nearly every social media platform, up to and including search engines whose name is so ubiquitous that it has become a verb for performing an internet search, IE “just Google it.” If you have been paying the slightest bit of attention, you should be aware of the completely unethical and obviously politically biased enforcement of “community guidelines” on platforms such as Twitter, Facebook and YouTube. If you watched the news after the 2016 presidential elections, you saw videos of hundreds of millennial snowflakes crying, screaming, rolling on the ground, requiring safe spaces and comfort animals all because their candidate lost an election.
Heck, just yesterday Facebook spanked me for violating the “community standards” because I commented on my page that I had banned a troll. According to the message Facebook sent me, doing so is “bullying.” A buddy of mine who is an admin at Drug Enforcement Cops got banned for making the comment pictured above. I still cannot figure out for the life of me what rule he supposedly violated to get banned with that comment. One of my friends, a US military veteran, an ex-cop and a current firearms instructor has to have multiple Facebook accounts because he speaks his mind freely, and doing so gets him banned on a near weekly basis.
The people who cry to Facebook, or Twitter, about the instances above; the people at Facebook and Twitter who arbitrarily enforce non-existent rules; the people who cried and rioted after the last election; the people who protest the cops after the cops shoot an armed felon; these are the people who have proven they do not care about right or wrong so long as it accomplishes their political goals. These people have demonstrated, in the most epic of fashions, that they cannot cope with daily life. Yet these are the very people who are going to be reporting “dangerous gun owners” to the cops, and are going to be responsible for getting the rights of law abiding gun owners trampled. If you are a gun owner who values your rights, no matter what your political affiliation is, that should scare the crap out of you!
The Chilling Effect
As if that is not enough, one must think about the fallout that the possibility of offending some anti-gun snowflake carries. As Duane Liptak, the CEO of Magpul so accurately noted in a Facebook post yesterday:
Guess what else “Red Flag” laws would do? By creating the threat of gun confiscation requiring a legal battle, attorney’s fees, and proving innocence, rather than defending against guilt based upon nothing more than a report from someone who “thinks” you may be dangerous…they create a weapon to be used by those who wish to silence the pro-rights community.
How many will be hesitant to share their passions for firearms online when the threat of all their firearms rusting in a pile in an evidence locker while they fight to get them back is a very real one? How many will still be willing to speak out against anti-freedom politicians and groups? Nationwide Red Flag laws would put in place a perfect tool for suppression of free speech by those individuals and groups that hate freedom and hate those of us who are willing to fight for it.
Freedom of speech is one of the bedrock principles on this nation, and protecting it is an absolute must if we hope to maintain the USA, the greatest country to ever grace the face of this planet. I hate racists with a passion, but during my career I literally defended their right to spew their racist bigotry in public. I can hate what you have to say, but I will always defend your right to say it.
The chilling effect on freedom of speech that would come from the constant threat of having the cops knocking on your door, demanding to take your guns, based on the word of some random person who was bothered by something you said, or supposedly said, should really trouble you if you value freedom of speech. As a recently retired cop, it bothers the hell out of me.
That Silly Bill of Rights
What should be plainly obvious to anyone, whether you are for or against “red flag” laws, is that taking the guns from a person who has committed no crime is a clear violation of their Second Amendment right. Whether you oppose gun control or not, I think this should be a pretty simple fact that we can all agree upon. And yes, all of our rights do have some restrictions; I’m not arguing that. Folks who support gun control routinely like to point out that one cannot go into a crowded theater and shout “fire!” They are only partially correct. Nothing actually prevents you from doing that, however doing so comes with consequences. Consequences that FOLLOW as a result of certain actions. What is different about red flag laws compared to shouting fire in a theater is that your rights are being violated BEFORE you have done anything, not after. You are facing consequences for something you have not done.
Getting beyond the Second Amendment, seeing as that is one many folks have no problem with trampling on, let us take a look at the other rights “red flag” laws violate.
The Fourth Amendment is supposed to protect us from unreasonable search and seizure. Searches and seizures are supposed to only be granted based on “probable cause.” The fact that “red flag” laws are intended to take a person’s guns away from them BEFORE they have committed a crime clearly violates the whole probable cause aspect of the Fourth Amendment. This is not “Minority Report” and there is no such thing as “pre-crime.” No one should be subject to the loss of any property because of what someone thinks they might do with it.
The Fifth Amendment is supposed to protect us from being “deprived of life, liberty or property without the due process of law” and it guarantees us the right to face our accuser. Everything about the process for a GVRO is in direct violation of that. The government is taking a person’s property before a hearing in which the accused is able to even offer a defense, let alone face their accuser.
And while these “red flag” laws are not in direct conflict with the First Amendment, I already discussed the secondary effects they would have on everyone’s freedom of speech.
According to a six month old article at US News & World Report, in 2018 more than 1,700 GVROs granted in the 12 states that have enacted “red flag” laws. Supporters of these “red flag” laws claim those 1,700 GVROs have saved lives, but there is absolutely no way to prove that. Proponents of the 1994 Federal Assault Weapons Ban also claimed it was saving lives, but looking back, the statistics do not remotely support that claim, which is why that law was allowed to expire after 10 years. While it is impossible to determine if in fact any lives were saved, it is easy to show that more than 1,700 people had their rights violated based on the words of someone else and not based on criminal activity committed by the person whose rights were trampled.
These “red flag” laws are nothing more than the modern equivalent to the Salem Witch Trials in which more than 200 people were convicted of practicing witchcraft, and 20 of whom were executed. “Witches” were arrested, tried and convicted on the nothing more than the word of another person. There needed be no evidence of wrongdoing, but the government took action so as to protect society from the witch.
“Red flag” laws are much the same thing. The government is merely protecting the rest of society from one person who potentially might do something, and all based on nothing more than the word of another person. Thus far, in the first year of “red flag” laws being passed, the government has already killed one person while trying to enforce “red flag” laws.
Eventually, the government in Salem admitted the trials were a mistake, and freed those who were imprisoned. They also compensated the families of those who had been wrongly put to death. How many innocent Americans are going to have to die at the hands of the government before the government once again is forced to admit error?