By Harold Pease, Ph. D
Trump can’t Support “Red Flag” Laws and the Constitution Simultaneously
Given the mass murders due to gun violence last weekend, 22 in El Paso, Texas, 9 in Dayton, Ohio, 11 in Chicago, 4 in Baltimore; it is easy to see why President Trump would seek a national solution—it is a national problem. Still, the Constitution specifically forbids a national solution—even a state solution—without a new amendment to the Constitution altering the second Amendment, because self-defense is an individual right (even God-given) not a right from government.
The Second Amendment reads: “A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” At the time of writing “militia” was the citizen and “shall not be infringed” meant off limits to government.
The only constitutional solution is a new amendment processed through Article V which requires a two-step proposal and ratification process, the latter requiring three-fourths of the states. Anything short of this is a serious “infringement” (violation) of the Constitution and a single violation justifies future violations until this particular freedom (self defense with a firearm) is lost to future generations.
“Red Flag,” laws are thought to be the “go to legislation” for the presumed mentally unstable of society that could resort to violence against themselves or others. These potentially allow thousands of innocent citizens to be punished only upon the fear that a crime might be committed. Secret lists of innocent people are created by family, acquaintances, and potentially disgruntled ex-lovers or spouses.
Anyone that can approach a judge with the claim that someone is thought to be a danger to himself and/or others, the sheriff is sent to disarm and confiscate the alleged offenders weapons. Those identified are punished without having committed a crime. All this without a shred of evidence of unlawful behavior. This legislation flies in the face of presumed innocence first which, until now, has been the backbone of our judicial system.
“Red Flag,” laws, are based entirely upon the assumption that someone may commit a crime, rather than, has committed a crime. If we disarm enough we will get the supposed perpetrator before he commits a crime. Their speech or behavior is viewed a red flag. Hitler, Stalin, Mao Tse-tung and Castro, all socialists, would have loved such laws. They could have labeled and disarmed their opposition before they did anything.
“Under Colorado’s proposed law, anyone can make a phone call to the police. They don’t even have to be living in the state. There is no hearing. All the judge has before them is the statement of concern.” Moreover, “little certainty is needed. Some states allow initial confiscations on just a ‘reasonable suspicion,’ which is little more than a guess or a hunch.” In just nine months of Florida’s Red Flag law passage, just last year, “judges granted more than 1,000 confiscation orders. In the three months after Maryland’s law went into effect on Oct. 1, more than 300 people had their guns taken away.” In Anne Arundel County, “a 61-year-old man died when the police stormed his home at 5 a.m. to take away his guns” (“The Folly of ‘Red Flag’ gun laws,” June 17, 2019, The Washington Times).
The biggest problems with Red Flag evaluations is that they happen “ex parte,” without the defendant present to defend himself. Due process, guaranteed in the Bill of Rights in three places, is denied. If “ex parte,” a second hearing is scheduled, some weeks later, where the defendant must provide evidence proving his innocence (U.S. & Texas LawShield Blog). You must prove yourself innocent of something that you never did, nor probably thought of doing, but was previously punished for by the forcible confiscation of your weapons. We are dangerously close to destroying the backbone of our judicial system, the presumption of innocence.
Some remember going down a similar path with Japanese-Americans many years ago. More than 110,000 were feared to be potentially dangerous in World War II and thus were rounded up in secret raids throughout western states and placed in “relocation camps.” No crimes had been committed and the United States later had to pay reparations to descendants for this injustice.
Both mass murderers appear to be politically motivated. El Paso mass shooter and Trump supporter Patrick Crusius, 21, traveled 650 miles to target a community at least 80% Hispanic for his victims. Far left Dayton, Ohio mass shooter and Elizabeth Warren supporter Connor Betts, 24, worshiped Antifa and hated ICE. Both far left and far right think the other crazy and capable of violence which is the foundation for Red Flag laws. Both want the power of government to remove the other.
An ominous cloud hangs over America if its citizens flood authorities with calls to take away the gun rights of the other. Historically government is happy to do both. El Paso and Dayton may be equivalents to Fort Sumpter in the Civil War.
LibertyUnderFire has already published how Red Flag laws violate, not only the Second Amendment, but amendments I, IV, V, VI and XIV as well. It essentially emasculates the Bill of Rights of the Constitution. President Trump cannot support red flag laws and the Constitution simultaneously.
ABOUT AUTHOR: Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
