September 27th, 2019
Red flag laws raise red flags over constitutionality
MON. | 05-10-21 | OPINION
On Thursday, Apr. 8, Biden took the podium in front of Congresspeople, reporters and journalists alike to announce his response to recent mass shootings in Georgia and Colorado as well as others that have taken place across the United States. He outlined a set of actions that he deemed most appropriate to crack down on these issues and laid out a detailed plan as to how they would be carried out.
Biden opened his remarks with a reassuring statement that undoubtedly instilled a sigh of relief within gun owners: “Nothing I’m about to recommend in any way impinges upon the Second Amendment,” followed by a swift move to shut down the claims of his opponents by highlighting that any claim that attempted to question the validity of his statement was “a phony argument.”
With the arguments of his opponents successfully annihilated with concrete facts, Biden moved to outline his points. Discussions of ghost guns, stabilizing braces, and ATF
Graphic contributed by State Legislatures
(Alcohol, Tobacco, Firearms and Explosives) director appointments all came up, but I couldn’t help but feel a shiver run down my spine when Biden began to discuss his encouraging of the Justice Department to outline a red flag law template that states will be incentivized adopt. While this change has not been adopted nationally, as of today, 19 states and the District of Columbia all have some form of red flag laws.
Red flag laws are laws set in place that allow for a third party such as a police officer, family member, or in some states, neighbors and doctors to petition a court to have any firearms a person possesses removed from their custody due to beliefs that they may be a danger to themselves or others. Essentially, should any of the aforementioned individuals feel as though you present a danger to yourself or others while in possession of a firearm, they can present that assertion to a court. Should the court agree, law officials are granted the right to enter your home via a special type of protection order and confiscate all firearms that you currently own. All the while, you may have never committed a crime, let alone been charged with one, and there was never an opportunity for you to face your accuser or a judge to refute the arguments made; an obvious violation of due process.
Recalling back to the beginning of Biden’s address, I remembered his claim made that “it [was] bizarre to suggest that some of the things that we are recommending are contrary to the Constitution,” and I couldn’t help but feel that either Biden was content with blatantly lying to the American populace, or he hadn’t taken a moment to consider what he was proposing.
The institution of red flag laws as Biden presents them and how he would see them incorporated into national practice are blatant violations of the Second, Fourth and Fourteenth Amendments. They violate the basic freedoms under which this country was founded and it is preposterous to claim that the removal of one’s property without due process of law does not violate the Constitution, even more so when one considers the property in question is a firearm. No person of sound mind could look at Biden’s proposal and actively claim that these were not infringing upon some of our most basic rights.
The Fifth Amendment to the Constitution set up the basis for due process which required the presence of a jury (now replaced by an impartial tribunal), active notice and an opportunity to confront your accuser and advocate on your behalf with or without an attorney. Together, these concepts helped to ensure that the justice system was as fair as possible and provided every individual the chance to defend themself in a fair trial. This same concept was later applied to the state governments through the Fourteenth Amendment which established due process for more than just the federal government. However, red flag laws strip the Fourteenth Amendment of its ability to provide due process in the event that an individual’s firearm possession comes into question. By preventing the accused from testifying on their behalf as well as failing to give them notice, two of the three fundamental principles of due process have been ignored. Additionally, by removing the right to a fair trial as well as the property of individuals who may not have committed a crime, red flag laws facilitate an environment that is increasingly rooted in the concept of guilty until proven innocent rather than the other way around. This is not only compromising the principles that our justice system is founded on, but it is blatantly in direct opposition to the Constitution, contrary to Biden’s belief.
It is also important to note that red flag laws violate the institution of the Fourth Amendment as well. The Fourth Amendment provides for the protection of American citizens from unreasonable searches and seizures and prevents law enforcement as well as the government from obtaining your property without warrants obtained through the proper course of law. Implementing red flag laws breaks this by allowing law enforcement to seize your property despite the absence of a fair trial and Constitutional obtainment of a warrant.
Going even further, the Second Amendment is also infringed due to the seized property being firearms. The Second Amendment protects the right to own firearms by stating that the right of the people to bear and own firearms “shall not be infringed.” By allowing our government to actively provide the means by which firearms can be removed from American citizens, we are breaking the fundamental right granted to us in the Constitution. The slew of broken Amendments, Constitutional promises and the insertion of federal government into the private lives of citizens makes a recipe for disaster, with the sole aim being to dismantle the basic fundamental rights granted to the American people at the birth of our nation.
Furthermore, in the midst of protests, riots and demonstrations against police, the last thing you would think a sitting Democratic president would do is give police the ability to petition courts to have firearms removed from homes, including those of African Americans. Last year alone, African Americans saw the highest surge in first-time gun buyers out of any demographic. If nothing else, should we not be protecting their Second Amendment right to bear arms rather than telling them that their neighbors or law enforcement can have their firearms removed without them ever having committed a crime? I guess not.
Red flag laws ultimately provide the government with the opportunity to remove American’s firearms by allowing the American citizenry to do it for them. To believe that this action is anything other than blatant anti-Constitutionalism wrapped in a lofty speech about the desire to protect others is beyond naive. A defenseless people is a submissive people, and a submissive people slave at the foot of a government fixated on control. One can only hope Biden takes a closer look at not only what his proposal includes, but also a closer look at the Constitution itself.