‘Red flag’ laws raise constitutional red flags


When I drove into the Wind River range, I had never heard of “red flag” laws. By the time I emerged three days later, they were the hottest topic in the news. 

It was disorienting, like walking in on a conversation in a foreign language. So, I had to educate myself. Here’s what I learned. “Red flag” laws are otherwise known as extreme risk protection orders (ERPOs). These laws allow a court to issue an order to confiscate legally-owned firearms from anyone whom a judge deems to be a risk to himself or others.

Who can ask a judge to do that? That depends on the state. Some, like Florida, Indiana and Rhode Island, give this power only to law enforcement. Hawaii, on the other hand, allows any family, household members, teachers, medical professionals, coworkers and law enforcement to file a petition with the court.

When judges receive such a petition, it is totally up to them whether to grant it. There is no requirement for a trial, evidence or a hearing. The person who is targeted by the petition doesn’t have to be present, or even notified. Some “red flag” laws do stipulate an objective level of proof that the judge must determine. None of them requires anything approaching “beyond a reasonable doubt.” 

American jurisprudence has six levels of proof that judges apply. From highest to lowest they are: “beyond a reasonable doubt,” “clear and convincing evidence,” “a preponderance of evidence,” “substantial evidence,” “probable cause,” and “reasonable suspicion.” Colorado merely requires a “preponderance of evidence” before confiscating your firearms. New York judges are not required to find any level of proof at all. In such states a judge can rubber stamp any petition that crosses his desk.

“Red flag” laws do require that a hearing be scheduled after the confiscation. The victim may wait weeks or months before finally getting his day in court. But even there, the burden of proof is not on the court to justify its confiscatory judgment. Rather, the victim has to mount a legal defense to prove that he is not a threat to others. He is guilty until proven innocent — and there’s not even the accusation of a crime.

Of course, the specter of a deranged individual with a gun is a frightening prospect. It was the Parkland school shooting that scared 12 states into passing red flag laws. Before that, only five states had them. But the threat of a crazy person with a gun has been with us since the invention of gun powder. The threat of courts that are enabled to seize personal property without any evidence or due process has been around since the beginning of time.

Responsible firearm users would never shoot first and ask questions later. But “red flag” laws confiscate first and ask questions later. That’s troubling. Before we go off half-cocked, let’s think this through. 

First, realize that the courts in Wyoming already have authority to confiscate firearms from a person who is a threat to himself or others — even before he is convicted of any crime. I know. I have sat in the Uinta County courthouse and watched this happen. I even agreed with the judgment.

Red flag laws are not needed to give law enforcement this ability. Rather, these laws only expand the number of people who can petition to have your guns confiscated, even when there’s no allegation of a crime. Meanwhile they lower the burden of proof that the state must meet, often removing it altogether.

Second, we are witnessing the implosion of civility in public discourse. People are hurling irresponsible charges. Public officials and media types have become indistinguishable from internet trolls. They label their opponents as Nazis, bigots or haters with absolutely no evidence and without fear of consequence. Is this the best time to give such people an additional weapon to have your guns confiscated by merely alleging that you are a “possible danger” to society?

Red flag laws allow a private citizen to unleash the power of government against another private citizen and they have no meaningful penalties when the accusation proves false. Nor is the victim given a public defender. Rather, he must prove his innocence on his own dime. In most cases, a legal defense will cost more than the guns are worth. The temporary confiscation may become permanent simply because the victim can’t afford a lawyer.

Third, why are firearms the only personal property covered by red flag laws? Deranged people have used knives, bats, claw-hammers, axe-handles and automobiles to assault their victims, but none of these can be confiscated under “red flag” laws. It is troubling when only one kind of personal property is exempted from due process. It is doubly troubling when that kind of personal property has an entire constitutional amendment protecting the right to keep and bear it.

All this got me thinking. Are there any other laws that permit a private citizen to unleash the power of government upon his or her ideological opponent? Are there any other laws that single out one constitutional right to remove it from legal protection?

Then, suddenly it struck me. While today’s “red flag” laws are being urged against the Second Amendment, we have seen them before. They have been used for decades to strip First Amendment rights away from certain speech.

While almost every kind of speech — even the vilest and craziest speech — is protected by law, three types of speech are regularly denied First Amendment protections. For years speech defending the unborn has been restricted from certain public spaces — determined by proximity to abortion clinics. More recently, speech that upholds the institution of marriage and the complementarity of the sexes is forbidden by SOGI laws.

Just like “red flag” laws, private citizens have been empowered to unleash the limitless resources of government against fellow citizens. A single complaint to a  “civil rights commission” can trigger years of legal trouble. People like Jack Philips, Barronelle Stutzman, Melissa Klein and many more, have been forced to spend hundreds of thousands of dollars on legal defense in order to prove that they have the right to say, “men are men and women are women.”

Meanwhile, the people who file the complaint have little out-of-pocket expense. The government does all the heavy lifting. And, if the courts finally decide that the complaint was without merit, there is no penalty at all for the person who unleashed the legal harassment. 

Red flag laws are nothing new. State and local governments have used them to outsource unconstitutional abridgements of the First and Second Amendments for decades. They don’t take all guns, or all free speech. They just make it easier for your fellow citizens to harass you until it costs so much time and money to exercise your rights that you finally give them up.

I am as frightened of a crazy man with a gun as anyone else. But I am even more frightened of crazy neighbors with the right to take them away. For that matter, I am not that crazy about any infringement on constitutional rights without the due process of law. That should be a red flag to anyone.

Jonathan Lange is an LCMS pastor in Evanston and Kemmerer and serves the Wyoming Pastors Network. He can be reached at [email protected] Follow his blog at OnlyHuman-JL.blogspot.com.

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