A litany of state laws aimed to alter the Second Amendment has descended, trespassing other amendments as well, permitting "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."
Presently at least 179 counties in the country and three states, Alaska, Idaho and Kansas, have declared Second Amendment sanctuary status as a result. The movement for sanctuary status includes any federal or state law that threatens the Second Amendment as written by the Founding Fathers. 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, principally, the Second Amendment "the right of the people to keep and bear arms, shall not be infringed."
But the issue that has lit the sanctuary revolution most recently is "red flag" laws because they violate other amendments as well. These potentially allow 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, and 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.
As reported, state "red flag" laws are driving sheriffs and county commissioners to seek Second Amendment sanctuary county status to defend their people from them and to uphold the Constitution they have sworn by oath to protect. In no state is that more evident at the present time than in Colorado where 60% of the counties have declared sanctuary status, which basically means "the law is null and void in this county." Officers either have to refuse to follow orders or defend the Constitution. When county commissioners declare sanctuary status, sheriffs do not have to stand alone.
Standing alone is still constitutional because sheriffs are the only elected law enforcement agents in the United States and each must swear an oath of allegiance to the U.S. Constitution to hold that trusted office. Constitutionally, they can only be removed by the people in their districts as they specifically represent only them -- not public opinion outside their district, the state or the federal government. They understand that a law from either Congress or the state legislatures cannot undo an amendment to the Constitution -- only another amendment and that requires the support of 3/4ths of the states, none of which has happened for any "red flag" law in any state. As such, they should be null and void at passage.
"Red flag," laws, distinguished from other anti-gun laws, are based entirely upon the assumption that someone may commit a crime rather than has committed a crime. A person's speech or behavior is viewed as a red flag.
These also fly in the face of Amendment IV, V, VI and the XIV. 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." Firearms are our weapons of self-preservation. It is "unreasonable" to confiscate them on the assumption that they may be used inappropriately. We might also wish to remove a person's automobiles, knives, hammers, or medicines which he or she might use to harm self or others. Heretofore, "probable cause" was based upon evidence, not opinion. Again, there exists no crime!
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.
Amendment VI. None were "informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." None of these four required conditions, prior to confiscation, were met because no crime was committed. The targeted had no opportunity to resist confiscation.
Finally, Amendment XIV. "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." "Red flag" laws totally deny "due process."
Thus "red flag" laws violate the following constitutional amendments: I, II, IV, V, VI and XI -- half of the Bill of Rights. No wonder sheriffs and counties are bailing. How serious is this threat to the Constitution as written? Presently 15 states have them in place and 13 more are processing them, potentially 28 -- more than half of the union. In accepting states, the Bill of Rights has been severely damaged.
Harold W. Pease, Ph.D., is a syndicated columnist and an expert on the United States Constitution. To read more of his weekly articles, visit www.LibertyUnderFire.org. Opinions expressed are those of the author.Editorial on 06/05/2019
Print Headline: 'Red flag' laws violate Constitutional law