Is Donald J. Trump anti-gun rights? Some might say “yes,” because the president has joined with Senator Lindsey Graham (R-SC) to support “red-flag” laws that allow government agents to take guns temporarily from those deemed too dangerous or unfit to possess a weapon. Such laws may be a major threat to the Second Amendment unless great care is taken to ensure due process is observed strictly and fully.
“Graham, in a statement, said he has reached a deal with Sen. Richard Blumenthal (D-CT) on a bill that would start a federal grant program to help and encourage states to create ‘”red flag” protection order’ laws, which are meant to make it easier for law enforcement to identify mentally ill people who should be banned from purchasing guns.”
Trump announced his support for the red-flag laws from the White House on Aug. 5, stating that “those judged to pose a great risk to public safety (should) not have access to firearms and that if they do, those firearms can be taken through rapid due process.”
Robust and Rapid Due Process
Graham outlined how the government will fund the program:
“’These grants will be given to law enforcement so they can hire and consult with mental health professionals to better determine which cases need to be acted upon,’ Graham said in a statement. ‘This grant program also requires robust due process and judicial review. It does allow for quick action.’”
There was no associated language for the legislation released, so we are left to wonder what these “robust” due process protections look like. Will any of the grant money go to lawyers who can defend those threatened with revocation of their rights and seizure of their property? From what we know so far about the red-flag procedure, it seems one-sided and not mindful of due process.
So far, 17 states have these laws. Colorado is the most recent state to enact one, April of this year. This law allows family members, roommates, romantic partners, and others, along with police, to seek a temporary order of a week’s duration without notice to the person whose gun rights are being abridged (respondent). If the order is issued, the subject cannot touch a gun or even be near one. Then a hearing is held with notice requirements at which a year-long revocation is ruled on.
Historically, such fundamental rights as those guaranteed under the Second Amendment cannot be curtailed without a criminal indictment or civil commitment. But in red-flag cases, where are the basic protections for the accused? These are not criminal proceedings, so there is no taxpayer-funded lawyer present as prescribed in the Miranda rights. If “rapid due process” means you can rapidly call a lawyer and bear the burden of attorney’s fees, quite a few of the accused may be priced out of the market.
To remedy this unfair situation, red-flag laws should guarantee a taxpayer-funded attorney, from the first hearing through the last, to argue for the rights of the respondent. They also should include provisions for safe storage and rapid return of firearms and licenses of those whose orders were denied. Finally, some extra penalty should be levied against those who falsely or maliciously use such an order to gain leverage in other proceedings, such as in family court, or simply to punish someone out of spite or anger. That kind of fraud would undercut the effectiveness of red-flag laws.
In the absence of guaranteeing the accused a fighting chance, red-flag laws are an assault on the Second Amendment.
Ben Franklin said, “[t]hose who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” And, I would add, they will lose both.