Red Flag Laws Are Likely Unconstitutional

I can’t say for sure that the Supreme Court will ever issue a ruling in a case that a Red Flag Law is unconstitutional but there is every reason for them to do just that.

The Constitution says you can’t be deprived of your property without due process of law. Due process means, at least, notice and an opportunity to be heard. That’s an essential element before a court can strip you of any property you lawfully own.

A Red Flag Law allows a judge to order your firearms taken from you based on nothing more than the word of a law enforcement officer in an ex parte hearing. A “family or household member” may also claim you present an extreme risk of harm to yourself or others. This court proceeding takes place without your knowledge. You are not notified of the hearing. You will have an opportunity to face your accusers, to challenge the evidence against you, or to have a lawyer to present your defense.

A Red Flag Law was first proposed in Colorado when the GOP still controlled the State Senate. They killed it because of its denial of due process of law.

When the law was brought up by the Democrats after they took control of the entire state of Colorado, a majority of sheriffs in Colorado came out against it, stating that if enacted they would not enforce it. Their objection was based on the statute’s denial of due process for the gun owner.

“Family or household member” is not what one might expect it to be. It’s not just one’s immediate family. It includes ex-wives, ex-girlfriends and your mother-in-law.

Once the order for confiscation of your firearms is issued the sheriff and other law enforcement officers will show up at your door to collect your firearms. It is at this moment that you will first learn that someone has traduced you, and you have become Joseph K in Franz Kafka’s dystopian novel, The Trial.

The Red Flag Law is a gift to anyone who holds a grudge against you or just wants to repay some personal slight or offense. It will no doubt be found useful to litigants in divorce and custody cases. This law will tempt people against you because of the ease with which they use it to “get even” with you.

Even in a case where the gun owner really does pose an extreme risk of harm to himself or others, there should be a chance for that person to make his case to refute the charge. A Red Flag Law is aimed at the gun which is not at fault. The gun can’t pull its own trigger. It the person who possesses the gun that should be the focus.

As we have seen in both the recent mass shootings in El Paso, Texas and Dayton, Ohio, the shooters both gave ample warning through their deviant behavior and spoken words that they were a problem. Nothing was done to stop them. Therein lies the real problem.

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