INVERTING DUE PROCESS WITH ‘RED FLAGS’: “One of the troubling issues behind such laws is the intent to “catch” people before they actually commit a crime—based on a presumption that the individual “may” commit that crime in the future. In essence, Red Flag laws are “pre-crime” laws, which is why they are also known as prevention laws.
And they invert our nation’s due process of “innocent until proven guilty” into something resembling “potentially guilty until proven innocent.” The intent behind Red Flag laws runs completely counter to the underpinnings of our legal system which has been designed to impose punitive measures after illegal conduct has occurred, not in anticipation of it.
The idea that someone “might” be a danger, although tempting in the wake of these tragic shootings, does not provide legal sufficiency to strip away an individual’s Constitutional rights without the benefit of due process. Also worth asking is what, exactly, constitutes a Red Flag? And who gets to make that determination?”
...Existing Red Flag laws are structured in a manner that incentivize seizure. A law enforcement officer or a presiding judge is unlikely to face any consequence for taking weapons away from someone who is not really a threat. But the potential public backlash from refusing to do so if something tragic was to happen would be fierce. There is an obvious inducement to err on the side of caution—even if it means a violation of that individual’s Constitutional rights.
...Why, if a person represents a level of danger great enough to warrant the seizure of his weapons, is he allowed to remain active in society without treatment? If an individual is deemed to be so dangerous as to require the confiscation of his weapons, surely professional treatment and some sort of custodial setting should be required.
A more useful hurdle might be a judicial determination that the individual meets the state standard for involuntary commitment and that remedy is the one that is followed. At a minimum some mental health treatment should be requisite—and only after a due process judicial determination...
“Honest, decent, law-abiding people should not lose their rights because some judge thinks they might do something in the future. That’s the Soviet Union model, not the American.” [-Judge Andrew Napolitano]
Congress has long had a bad habit of enacting poorly-written, responsive laws, and there is generally an inclination on the part of government to overreach. When enacted legislation and regulation fails, the nature of government is to follow up with additional laws and regulations. If the government is allowed to seize your guns based on the possibility of a future crime, how long before the seizure is of one’s liberty?
...The 5th and 14th Amendments of our Constitution mandate that no citizen shall “be deprived of life, liberty, or property, without due process of law.” When individuals have their firearms confiscated in advance of a judicial hearing, both Amendments are violated, and the individual’s Second Amendment right has been effectively converted into a privilege.
Red Flag laws may violate other portions of our Constitution as well—such as the right to an attorney (6th Amendment) and unreasonable searches and seizures (4th Amendment).”
INVERTING DUE PROCESS WITH ‘RED FLAGS’: “One of the troubling issues behind such laws is the intent to “catch” people before they actually commit a crime—based on a presumption that the individual “may” commit that crime in the future. In essence, Red Flag laws are “pre-crime” laws, which is why they are also known as prevention laws.
And they invert our nation’s due process of “innocent until proven guilty” into something resembling “potentially guilty until proven innocent.” The intent behind Red Flag laws runs completely counter to the underpinnings of our legal system which has been designed to impose punitive measures after illegal conduct has occurred, not in anticipation of it.
The idea that someone “might” be a danger, although tempting in the wake of these tragic shootings, does not provide legal sufficiency to strip away an individual’s Constitutional rights without the benefit of due process. Also worth asking is what, exactly, constitutes a Red Flag? And who gets to make that determination?”
...Existing Red Flag laws are structured in a manner that incentivize seizure. A law enforcement officer or a presiding judge is unlikely to face any consequence for taking weapons away from someone who is not really a threat. But the potential public backlash from refusing to do so if something tragic was to happen would be fierce. There is an obvious inducement to err on the side of caution—even if it means a violation of that individual’s Constitutional rights.
...Why, if a person represents a level of danger great enough to warrant the seizure of his weapons, is he allowed to remain active in society without treatment? If an individual is deemed to be so dangerous as to require the confiscation of his weapons, surely professional treatment and some sort of custodial setting should be required.
A more useful hurdle might be a judicial determination that the individual meets the state standard for involuntary commitment and that remedy is the one that is followed. At a minimum some mental health treatment should be requisite—and only after a due process judicial determination...
“Honest, decent, law-abiding people should not lose their rights because some judge thinks they might do something in the future. That’s the Soviet Union model, not the American.” [-Judge Andrew Napolitano]
Congress has long had a bad habit of enacting poorly-written, responsive laws, and there is generally an inclination on the part of government to overreach. When enacted legislation and regulation fails, the nature of government is to follow up with additional laws and regulations. If the government is allowed to seize your guns based on the possibility of a future crime, how long before the seizure is of one’s liberty?
...The 5th and 14th Amendments of our Constitution mandate that no citizen shall “be deprived of life, liberty, or property, without due process of law.” When individuals have their firearms confiscated in advance of a judicial hearing, both Amendments are violated, and the individual’s Second Amendment right has been effectively converted into a privilege.
Red Flag laws may violate other portions of our Constitution as well—such as the right to an attorney (6th Amendment) and unreasonable searches and seizures (4th Amendment).”
https://www.theepochtimes.com/the-red-flags-surrounding-red-flag-laws_3034689.html