Laws at the top of the current list of demands by progressives that are ostensibly implemented to take guns away from mentally disturbed gun owners, but they are based in fallacy and represent real losses of rights. Two glaring fallacies underlie those proposals: (1) firearms are inherently evil, as are their owners, and catalysts for violence; (2) and such laws will not be misadministered and lead to endangering other rights. Proposed red flag laws would allow police to violate both one’s Second Amendment rights and the rights of due process by confiscating one’s firearms based on a claim that the gun owner is unbalanced or prone to violence.
“Red flag” gun confiscation laws violate every principle of liberty upon which our country was founded. There is no due process associated with “red flag” laws. A judge’s order to seize the firearms from an American citizen who has not been accused of a crime, charged with a crime, convicted of a crime—or who never even threatened to commit a crime—based on the accusation of a single individual is anything but due process.
Our accuser could be a disgruntled employee, a bitter ex-spouse or relative, a vengeful neighbor, an anti-gun liberal or even an anti-gun policeman. By definition, “red flag” laws use mere suspicion of what one “might” do as justification to seize a person’s firearms. Tactics such as these have been used in virtually every despotic regime of history. In the name of protecting society, the rights and liberties of individuals were denied. Eventually, these repressive governments included political or religious persuasion as triggering “red flags,” which led to their disarmament—all in the name of public safety, of course.
When the rights of ONE American are abridged, the rights of ALL Americans are abridged. This is not yet a communist nation where the rights of the state—or even the rights of a majority of citizens—supersede the rights of the individual.
Gun control advocate Milton Eisenhower’s National Commission on the Causes and Prevention of Violence study recommended that private handgun ownership be banned in the 1960’s. But the bias behind that and other recommendations was stripped away in a later study by the Carter administration that was intended to confirm the Hopkins findings and provide a launch pad for draconian gun laws. It didn’t. Carter researchers found the Hopkins study was “results oriented” and intentionally constructed to come to the conclusions it did. The surprise Carter conclusion, which was shoved under the proverbial publicity rug, stated: “It is commonly hypothesized that much criminal violence, especially homicide, occurs simply because firearms are readily at hand and, thus, that much homicide would not occur were firearms generally less available. There is no persuasive evidence that supports this view.” The lead researcher then delivered what remains the coup de grâce most have never heard: “A compelling case for gun control cannot be made.”
That should have pushed the red flag law idea over the precipice, but it didn’t. Gun-control activists keep making up “truths” that reflect their own irrational biases, without any regard to the likelihood that their new laws would bring about a legal and constitutional slippery slope and a descent into a police state of informers and arbitrary arrests.
Red flag law proponents dismiss that scenario and buttress their dismissal with the opinions of academics such as Diablo Canyon College philosophy professor Jacob E. Van Vleet. He and other elites generally maintain that the slippery slope concerns are fallacies “precisely because we can never know if a whole series of events and/or a certain result is determined to follow one event or action in particular. Usually, but not always, the slippery slope argument is used as a fear tactic.” Maybe so, but that’s a rhetorical cop-out, for there is an overriding reality about the type of constitutional-rights-busting power implicit in red flag laws that was stated by English Baron John Emerich Edward Dalberg-Acton: “Power tends to corrupt, and absolute power corrupts absolutely.”
The danger becomes all the more likely when a medical professional such as a psychiatrist claims a gun owner has gone off the rails. But is a psychiatrist’s claim truly an indication of real danger? Most people would likely believe it is. But tests of that belief conducted by Stanford University professor of psychiatry David Rosenhan and others in a landmark 1973 study indicate such an opinion is far from a slam-dunk fact. Rosenhan had sane people fake hallucinations in order to test the widely held belief that psychiatrists could reliably tell a truly mentally ill person from one who is not. The results showed “psychiatrists cannot reliably tell the difference between people who are sane and those who are insane.”
Though Rosenhan received much pushback from the psychiatric community, the essence of his conclusion was found as far back as 1887 by investigative journalist Nellie Bly. She successfully faked symptoms of mental illness to gain access to a lunatic asylum in order to expose its inhumane conditions. At the very least, Bly’s fakery and Rosenhan’s study bring into question the legitimacy of the psychiatric opinion, an opinion to which all red flag laws I’ve seen give added weight regarding who is sane and who is dangerous. Is that warranted?
Furthermore, Dr. Ann Bukacek, a highly respected medical doctor, wrote:
Mental health diagnoses given by physicians or other mental health care workers do not predict firearm violence. As a physician for over 30 years who has treated many patients with mental health diagnoses and some autistic spectrum patients, I have not had one of those patients commit an act of gun violence. I did have a patient who bludgeoned a man to death with a blunt object, and that patient carried no mental health diagnosis. Psychopaths with no conscience, especially the more intelligent ones, usually escape detection and/or a particular diagnosis.
This doctor’s examination of the issue reflects reality.
Besides, under these “red flag” laws, exactly who is it that determines that someone is “crazy”? Is it one judge, who bases his or her conclusion on the accusations of just one individual? Is it up to politicians or government bureaucrats to define who is and who is not “crazy”?
There are some people who believe that anyone who would even own a firearm is “crazy.” Others believe one’s political or religious beliefs qualify him as “crazy.” Heck! We have all read the documentation of various governments (local, State and federal) that have assigned all kinds of “crazy” (even “dangerous”) definitions against people based on their interpretation of Bible prophecy or their association with political candidates such as former Congressman Ron Paul or their opposition to politically correct ideologies, etc.
Does the judge who issues a warrant to seize a person’s firearms under a “red flag” law provide the accused with an opportunity to defend himself BEFORE violating his constitutional and Natural rights? No. Does the judge provide an opportunity for a close examination of the accusations against the accused (including investigating the accuser) BEFORE violating his constitutional and Natural rights? No. Does the judge allow the accused to face his accuser BEFORE violating his constitutional and Natural rights? No.
“Red flag” laws turn the Bill of Rights and the fundamental legal doctrine that a man is innocent until proven guilty completely upside down. “Red flag” laws are a mockery to every constitutional principle of liberty since the Magna Carta. Seizing a citizen’s firearms by force (and thereby rendering him defenseless) without a crime being committed—or even the accusation of a crime being made—is old-fashioned TYRANNY. Such an act presumes a person is guilty until proven innocent.
Then there is this: After the guns are seized, it could take years for the victim to prove his innocence (or competence) and have his guns returned—and in what condition would they be when (and IF) returned? Furthermore, will you legislators, judges and police officers who collaborate to strip an innocent person’s ability to defend himself accept any responsibility when the real bad guys take advantage of this person’s vulnerability and invade his home and bludgeon or rape or even kill his family? Of course you won’t. But mark it down: You will be held responsible in the eyes of Almighty God—and in the eyes of the citizens you have victimized.
And are you really going to try and tell us that police officers are more competent and mentally stable than the rest of us? Are you kidding? The examples of improper, unsafe, careless and even homicidal acts of cops with guns are ubiquitous.
It was an FBI agent who was armed at a nightclub in Denver and then started gyrating and dancing like a madman until his handgun fell on the floor, discharged and wounded a fellow patron. But no official even questioned this officer’s fitness to possess a firearm—even AFTER that event took place.
Then there is the case of the Dallas police officer who walked into the wrong apartment and shot and killed the man who lived inside. Where was the “red flag” regarding this officer? And what about the two police officers in St. Louis who used a revolver to play Russian roulette, and one of the two wound up shooting and killing the other one? Why wasn’t a “red flag” raised about these nincompoops? These stories could go on forever.
Where are the “red flag” laws for the policemen and sheriff’s deputies in this country? The only difference between them and the rest of us who are being victimized by these draconian “red flag” laws is that they wear badges, and we do not—and the other difference is the vast majority of private citizens who carry firearms are not nearly as stupid and incompetent as the policemen mentioned above.
So much for equal justice under the law.
It has taken many of us a lifetime of hard work and labor to be able to obtain our gun collections; we have successfully passed FBI background checks and local and State requirements and obligations for responsible gun ownership, yet our guns are going to be confiscated overnight on the word of someone (an anonymous someone, at that) who claims we “might” be unsuitable to own a gun? Again, such an act turns American history and our Bill of Rights upside down.
Kris Kobach is the former Secretary of State of Kansas. He is a former professor of constitutional law at UMKC School of Law. He wrote an excellent analysis of the constitutional violations of these “red flag” laws:
1. The seizure of guns without any hearing at all. The laws all contain an ex parte provision that allows the state to temporarily seize a person’s guns without even notifying the gun owner or giving him a chance to be heard. This is the quintessential denial of due process. The Fourth Amendment makes clear that a person cannot be denied of liberty (to exercise one’s constitutional right to bear arms) without due process of law. This confiscation is “temporary,” but it can easily lead to long-term or permanent confiscation.
2. Based on the testimony of one unrelated person. The confiscation order can be based on the testimony of only one person claiming that the gun owner poses a risk to the safety of himself or others. The law [proposed in Kansas] deceptively says that it has to be the testimony of a “family member.” But “family member” is defined to include “former dating partners” and anyone who has ever lived with the defendant. So a jilted former boyfriend or girlfriend, or even a roommate from years ago, could easily set in motion the disarming of a lawful gun owner.
3. Using a very low standard of proof. The standard for obtaining an ex parte order against a gun owner is absurdly low – one need only show “reasonable cause” to believe that the person may pose a risk. That’s even lower than the “probable cause” standard for obtaining a search warrant. In addition, the judge is forced to rush his decision and issue the confiscation order on the same day of the ex parte hearing. Within two weeks of the ex parte hearing, a hearing with the gun owner present must occur; the purpose is to put in place a long-term confiscation order. But even at that hearing, the standard of proof is far below the “beyond a reasonable doubt” standard used in criminal trials. Rather, it need only be shown by “a preponderance of evidence” that the person poses a risk of injury to self or others. What kind of evidence? Things like the “reckless storage” of firearms and drinking habits can be considered. If you keep a handgun in the bedside table and drink beer regularly, you may [be] in trouble.
4. Shifting the burden of proof to the gun owner. The long-term confiscation order lasts up to a year, but may be renewed indefinitely. Once it is in place, it becomes very difficult to remove. To have the confiscation order lifted, the gun owner must prove he does not pose a threat to himself or others. Proving a negative is nearly impossible. Adding insult to injury, the bill even authorizes local law enforcement to charge the gun owner a storage fee for confiscating and storing his guns.
The implementation of “red flag” laws (at any level) is unconscionable and totally unacceptable. And I am here to warn you that there are millions of Americans who will never submit to such oppression. None of us wants to see acts of violence committed against law enforcement personnel in America, but when law enforcers begin carrying out these draconian “red flag” laws, they will begin lighting the matches of resistance in the hearts of freedom-loving people in this country like hasn’t been seen in over 150 years.
We have already heard about Gary Willis, the Maryland man who was killed by police officers in his own home as they attempted to carry out a “red flag” order to seize his guns. This man had committed no crime; he had not been accused of committing a crime; he was given no hearing and no due process. Mr. Willis did not attempt to harm the officers; he merely resisted their efforts to disarm him, and he was killed on the spot—in his own home—by police officers who had taken an oath to protect the liberties of this poor innocent man.
I assure you, Mr. Willis will not be the last American to resist the attempted confiscation of his firearms.
Do you legislators, judges, county sheriffs, chiefs of police, sheriff’s deputies and city policemen not realize that “red flag” laws are tantamount to a declaration of war against the American people? Are you so far removed from “the laws of Nature and Nature’s God” that you cannot see this? Do you not realize that in spite of all of Great Britain’s abuses of power, our colonist forebears did not openly rebel against the Crown until King George sent troops to Lexington and Concord to confiscate the colonists’ firearms? You do understand that, right? And you do understand, do you not, that the blood of the colonists flows in the veins of we Americans?
At what point do the American people come to believe that you truly do NOT wish to honor your oath to the Constitution or behave in a manner that truly honors America’s Second Amendment and the heritage of liberty that we all share as Americans? At what point do we Americans lose all respect for our civil magistrates and peace officers? For many Americans, that point will come when policemen bang on their doors at 5am and attempt to seize their guns.
Do you not realize that every single instance of an innocent person being subjected to a “red flag” gun confiscation order will only magnify and strengthen the resentment and animosity in the hearts of the community against these laws—and against the ones who are creating and implementing them?
Do you not understand that this is a powder keg that could explode into all-out rebellion at any time? Do you want that? I don’t want that! I don’t want that for my wife and me, my children and grandchildren, my friends or my community. Why would you legislators, judges and policemen even think about doing such a thing?
In the name of all that we hold dear, in the name of the brave men at Lexington Green and Concord Bridge, in the name of every American who has given his life in defense of the principles contained in our Declaration of Independence, our Constitution and our Bill of Rights—including many of our brave police officers and sheriff’s deputies—and in the name of the Natural Laws of our Creator, please STOP this madness before you literally tear our communities and our country apart.
As a legislator, you must not pass any semblance of a “red flag” law; as a judge, you must not issue a gun confiscation warrant on the basis of a “red flag” law; as a sheriff or chief of police, you must not order your officers to confiscate a citizen’s guns on the basis of a “red flag” warrant; and if you are a sheriff’s deputy or city policeman, you must not obey an order to confiscate your fellow citizens’ guns on the basis of a “red flag” law.
I beg you to realize what you are doing. I beg you to refuse to participate in this madness. I beg you to join your fellow churchmen, clubmen, neighbors, friends and townsmen and help us turn back this dastardly attempt to transform our constitutional republic into another repressive regime that, in the end, would require The People to tear it down.
Again, I beg you to think about what you are doing, about the pain you are causing, about the lives you are ruining and about the potential harm you are inflicting on our country.
“Red flag” laws are on the wrong side of history, the wrong side of our Constitution, the wrong side of liberty and on the wrong side of the laws of God.
That does not mean America would necessarily slide into an East German-style Stasi police state overnight. It might take a while. “There is no ‘slippery slope’ toward loss of liberties, only a long staircase where each step downward must be first tolerated by the American people and their leaders,” former U.S. Senator Alan Simpson of Wyoming has said. But “once the down staircase is set in place, the temptation to take each next step will be irresistible,’ noted former New York Times columnist William Safire. The late U.S. Supreme Court Justice William O. Douglas understood:
As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air — however slight — lest we become unwitting victims of the darkness.
And victims we will be.
The urge to destroy our Second Amendment will require that other rights against abusive government, such as search-and-seizure protections, will have to be weakened as well. As the Sir Thomas More character in the movie A Man For All Seasons asked a zealot who wanted to knock down all the laws of England to find the devil, “Do you really think you could stand upright in the winds that would blow then — the laws all being flat?”
Wake up and smell the sulfur.
