With the announcement that the House Judiciary Committee plans to return from recess early to discuss a variety of gun control measures, stalwart Second Amendment advocates should be on high alert. The recent spate of deranged individuals shooting people in public places has fired up the anti-gun lobby to a fever pitch. Several laws designed to gut the Second Amendment are in the offing, along with the Extreme Risk Protection Order Act. As if this weren’t enough, House Judiciary Chairman Jerry Nadler (D-NY) has set September 25 as the date for a hearing on assault weapons.
A Tangled Web
Most of the gun control chatter centers around so-called “red-flag” laws. Red flags, as most people know, are alerts. When used in connection with gun control, the legislation is designed to take firearms from people who have not committed a crime but are deemed a danger to others.
Oh, boy – that sure is a gray area, and when up against the right to bear arms, this type of law is fraught with danger of the unconstitutional kind. Let’s examine just a few of the potential pitfalls:
Who is a Danger? – Let’s say a couple in the midst of an ugly divorce starts slinging mud, and the wife knows that her spouse owns firearms. What’s to stop her from claiming that she’s frightened, and, perhaps in anger, concoct a story or two about her soon-to-be-ex. So, she hires a lawyer to seek a court order to have her husband’s guns taken away. Now it’s up to a judge to decide ex parte, which means he or she only hears one side of the story. Out of an abundance of caution, the judge then issues a court order for the man to surrender his guns. This is hardly a far-fetched scenario, and it outlines just how the right to due process can easily be violated.
Family Members Join the Party – One doesn’t have to speak in hypotheticals to understand this one. In California, a woman who resides in the home of a man who had his firearms seized also had hers confiscated. This occurred even though her firearm “was registered, and locked in a gun safe,” according to a report in The Washington Examiner. Essentially, this woman must surrender her rights due to guilt by association.
The Definition of Threat, Mental Illness, and At-Risk – Red-flag legislation is loaded with gray areas that call for assumptions on the part of law enforcement, judges, and mental health professionals. Just who poses a threat? What constitutes a person who is at risk for violent behavior? What definition of mental illness is being used? How mentally ill do you have to be? Red-flag laws set up a situation whereby those in positions of authority may want to err on the “safe side.” That’s bound to mean more people will be separated from their firearms.
It’s All About the Benjamins – Once removed, it’s no easy task to get your guns back. According to law professor and practicing attorney Donald Kilmer, storage fees apply, which means you have the joy of paying for your confiscated guns to be taken care of elsewhere. Then there are attorney fees so you can defend yourself in a “due process” hearing. Kilmer estimates that initial costs could run around $15K. If there is an appeal involved, a person whose guns have been confiscated could be looking at spending up to $100K. This sounds like a situation where only the wealthy need apply.
No Due Process
Liberty Nation Legal Affairs Editor Scott D. Cosenza, Esq. warns, “The main problem with red-flag laws, and what makes them odious to our constitutional republic, is that they allow the government to strip a person's fundamental right away without due process of law.” He continues, “Our Revolutionary War was waged in large part to ensure due process and respect for these fundamental rights – it's what makes America unique, and why so many who treasure liberty abhor red-flag laws.”
Enacting red-flag legislation represents a serious threat to the fundamental rights afforded citizens by the US Constitution. Lawmakers would be wise to heed the phrase “less is more” when it comes to dreaming up new gun rules that are likely to initiate a plethora of legal questions without solving the issue at hand. As well, law-abiding Americans should be wary of any and all attempts to remove rights and liberties that are provided under the Second Amendment. At the very least, they should arm themselves with the knowledge to fight hasty and short-sighted efforts to confiscate their firearms.
Read more from Leesa K. Donner .
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