Editor’s response:
(This is in response to Scrappy’s Reply to the Editor)
As you mentioned, we both agree the Red Flag Laws currently enacted in Democrat-controlled states are poorly written, can easily lead to violations of the 2nd Amendment, and could allow red flags to be triggered by hearsay. So, the first step towards bettering our discussion is recognizing that we are not bound by the Democrat’s language in discussing the idea of Red Flag Laws.
That being said, I think our disagreement lies fundamentally in two things: whether it is possible for a Red Flag Law to be utilized without allowing hearsay to strip a law-abiding citizen of their 2nd Amendment Rights or violating due process and whether a Red Flag Law is even necessary given current tools at Law Enforcement’s disposal.
First off, I think we need to define hearsay properly. Oxford defines hearsay as “information received from other people that one cannot adequately substantiate; rumor.” So, hearsay would be when someone says, “Joe told me that Susan said she doesn’t like me.” But if the statement is, “Susan walked up to me and told me she doesn’t like me,” it’s not hearsay as it is information received from the source. To put it as simply as possible: hearsay is second-hand information.
It would be extremely easy to ensure a Red Flag Law is written to make sure a red flag cannot be triggered by second-hand information. You are exactly right, second-hand information shouldn’t be allowed to strip someone of their rights, it should only trigger an investigation. But, a credible first-hand witness from family, cohabitants, or persons in positions of trust is compelling testimony, not hearsay.
The next thing it would be valuable to define and understand is due process. Your argument bases itself on the idea that if rights are impugned or suspended before facing a judge or undergoing a trial then due process has been flipped on its head. But, is your argument really a reflection of the current idea of due process?
Consider the following scenario:
An officer notices your license plate has an expired date. He has reasonable suspicion your license is not properly registered. He engages lights and sirens and pulls you over. So long as the officer is engaging in an investigation of what he believes to be a crime, you are not free to go. Because the officer reasonably believes you have committed a crime you must give him your driver license and vehicle registration. Your freedom of movement has been suspended. Certain aspects of your right to privacy have been suspended.
Next, the officer informs you that his system shows your car as having no valid insurance. He asks you to get out of the car and tells you to find another way home, as the car is going to be impounded for being on the road without insurance. Now, based purely on the officer’s discretion, your property is being seized.
Next, you watch as the officer engages in a routine impound inventory, searching and cataloging all your possessions in the car. Once again, your right to privacy is being suspended and, since he’s cataloguing your possessions for consistency of record and not searching for evidence pursuant to a crime, protection against search and seizure without a warrant does not apply.
You receive your court date and appear before the judge. You present him with the proof of your insurance and it is confirmed the system was in error when it showed the vehicle as not having insurance. The judge dismisses your case and you get your car and your possessions back.
Is this the “new due process” you speak of? Unfortunately, agree with it or not, it is the old due process. It has been a consistent feature of our justice system for some time that reasonable suspicion is grounds for the suspension of certain rights and probable cause is grounds for suspension of nearly all rights (you can be arrested and held in jail on probable cause). As it specifically relates to firearms, it has been the case since 1968 when Terry v Ohio was heard by the Supreme Court that an officer can perform a protective search for weapons and temporarily seize firearms during the course of an investigation, even in the absence of probable cause for arrest.
All my proposal for a Red Flag Law would do would essentially extend the idea of temporary seizure from Terry v Ohio to the situation of a credible report of premeditation to commit mass murder or suicide. So long as the subject is allowed a speedy hearing and can face his accusers, due process is preserved. Due process has never required a conviction before anything can be done. People are arrested, property is seized, and rights are temporarily suspended every day before any judge or jury gets involved.
Based on my understanding of what defines hearsay and due process, I can reach no other conclusion but that your claim that a Red Flag Law cannot possibly go into effect without allowing hearsay as evidence or violating due process is false. If the language of the law mandated that the complainant must appear before a judge and offer credible first-hand testimony to trigger the red flag and if the subject is afforded a court appearance within 24 hours to face his accuser and afforded the ability to refute the claims, hearsay would be inadmissible and due process would be preserved. This process would not only be consistent to established due process but actually involves protections that are above and beyond similar temporary suspensions of rights and privileges.
As to the other part of your argument, that present laws provide sufficient protections to stop mass shootings, these terrible crimes continue to happen and they appear to be doing so in more and more frequency and with more and more visibility to the public. The simple fact of the matter is that these crimes are turning public opinion away from gun rights and towards gun control. We must offer more than the status quo if we are to preserve our rights from future encroachment. If you feel current laws are sufficient, you are going to need to address why they are not being used correctly or efficiently and offer actionable suggestions on how to make the laws more effective in their purpose.
Justin Stapley is the owner and editor of The Liberty Hawk. As a political writer, his principles and ideas are grounded in the ideas of ordered liberty as expressed in the traditions of classical liberalism, federalism, and modern conservatism. His writing has been featured at the Federalist Coalition, the NOQ Report, and Porter Medium. You can follow him on Facebook and on Twitter.
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Nice response. I’ll have to email you to make sure we’re on the same page with what we are talking about.