Most now understand that "red flag" laws violate the Second Amendment of the Bill of Rights and many Republicans, including the president, now seem willing to join Democrats, after the recent shootings in El Paso and Denton by crazed left-and right-wing extremists, to put dents in the Second Amendment hoping these laws "might" somehow help. But few realize that they also virtually emasculate the Bill of Rights. What follows is an explanation of the damage "red flag" laws would do to the Bill of Rights.
Amendment I. "Red flag" laws encourage "police-led searches" of our social media, thus effectively "abridging the freedom of speech, or of the press" constitutionally protected in the First Amendment. Disagreeable speech is labeled "hate" speech, thus potentially "violent" speech, thus subject to laws allowing the removal of one's weapons. Liberty ends when the freedoms of speech, the press, assembly and religion come to an end.
Amendment II. This amendment was specifically designed to protect the first amendment, giving the people the ability to resist tyrannical government as the Founders had -- even by revolution if required. Any law, state or federal, that threatens the Second Amendment as written by the Founding Fathers is unconstitutional. In New Mexico, that includes requirements for firearm storage and background checks for private firearm sales. In New York, it includes banning bump stock devices. In Washington State, it is I-1639, which "classifies semi-automatic rifles commonly owned for recreation and self-defense as assault weapons and prohibits young adults under the age of 21 from purchasing them." These violate the clear language of the Second Amendment: "the right of the people to keep and bear Arms, shall not be infringed."
But "red flag" laws go further, potentially allowing thousands of innocent citizens to be punished only upon the fear that a crime might be committed. Secret lists of innocent people are created by family, acquaintances, and potentially disgruntled ex-lovers or spouses. Anyone that can approach a judge with the claim that someone is a danger to himself and/or others, the sheriff is sent to disarm and confiscate his weapons. Those identified are punished without having committed a crime. All this without a shred of evidence of unlawful behavior.
Amendment IV reads in part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Today, computers and electronic devices are our "papers" and "effects." Warrantless searches, without probable cause, violate this amendment. And "red flag" laws allow the government to confiscate weapons based on such warrantless searches, including weapons of self-preservation. It is "unreasonable" and unconstitutional to confiscate one's weapons on the assumption that they may be used inappropriately. We might also wish to remove one's automobiles, knives, hammers or medicines since they might be used to harm self or others.
Continuing, "No Warrants shall issue, but upon probable cause." Heretofore "probable cause" was based upon evidence of having actually done something, not an opinion that someone might do something. Again, there exists no crime! A warrant alone is not due process. "Supported by Oath or affirmation," means by government agents who have sworn allegiance to protect and preserve the Constitution, which "red flag" laws violate.
Amendment V reads in part: "No person shall be ... deprived of ... property, without due process of law." Due process is denied thousands under "red flag" laws. None were charged with a crime, arrested or convicted before gun confiscation. Without due process, all of our rights and properties are unsecured. It is that simple.
Amendment VI lists the rights of the accused, the due process procedure entitled to all citizens, in "all criminal prosecutions." Although "red flag" laws are not criminal prosecutions, they have the same effect. They accuse and administer punishment. They are "speedy" but not "public" as constitutionally required. None were "informed of the nature and cause of the accusation ... confronted with the witnesses against him ... [allowed] compulsory process for obtaining witnesses in his favor, and ...[allowed] the assistance of counsel for his defense." Where was the "impartial jury?" None of these four constitutionally required conditions were met prior to confiscation because no crime had been committed. Those targeted by the government in "red flag" laws have no opportunity to resist confiscation.
Amendment VII reads "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." Twice mentioned is common law which is the underlying principles of justice that govern all human relationships -- natural law -- whether fully understood or not.
This amendment speaks to property exceeding $20 in value, of which all guns exceed. Although largely fallen into disuse because of the now unrealistic money requirement specified, the amendment suggests the importance of common law and jury (peers) trials, rather than judges, making the decisions regarding property. Certainly "red flag" laws exempt juries and confiscate property (guns).
Six of 10 Bill of Rights amendments are severely damaged by "red flag" laws without due process, the backbone of our judicial system, the greatest fatality. This is certainly the greatest threat to the Bill of Rights since the Obama sponsored National Defense Authorization Act of 2012, which already effectively neutralized Amendments 4, 5, 6 and 8 of the Bill of Rights (see "New Bill Damages Bill of Rights and Could Target Americans for Military Detention," LibertyUnderFire.org).
Harold W. Pease, Ph.D., is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for more than 30 years at Taft College. To read more of his weekly articles, visit www.LibertyUnderFire.org. Opinions expressed are those of the author.
Editorial on 08/21/2019