August 27, 2019
When 61-year-old Gary Willis of Ferndale, Md., went to answer a 5 a.m. knock at his door, he took his handgun with him, just as many of us would likely have done in the same situation. Afterall, what could anyone want with him so early in the morning when it was still pitch dark outside?
A few minutes later, Willis lay dead on the floor, shot by officers who said Willis had set his gun down on a table beside the door, but then became irate, picked it up again and fired a shot. Consequently, they said, they had no recourse but to shoot Willis to protect themselves.
What was Willis’ alleged crime? Surely, he must have been suspected of murder for such an early-morning surprise visit. Or, at the very least, he must have had outstanding warrants for violent assaults or other dangerous felonies.
Truth is, Willis had committed no crime. In fact, he wasn’t even suspected of committing a criminal act. Instead, Willis was a victim of Maryland’s so-called “red flag law,” which allows judges to revoke a citizen’s Second Amendment rights with no hearing and no recourse—in other words, no due process as guaranteed by the U.S. Constitution.
A Little History
Red flag laws, also called Extreme Risk Protective Orders (ERPOs), might sound more like laws used in Nazi Germany than in the modern-day United States. But they seem to be here to stay and are spreading quickly throughout the country.
Such laws exist in one form or another in the District of Columbia and 17 states—California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington. And lawmakers in four more states—Michigan, North Carolina, Ohio and Pennsylvania—are currently debating red flag legislation. If things continue as they are, half the states in the country could be living under ERPO laws in the next few years.
These red flag laws are the product of the “We’ve got to do something” crowd that always puts emotion above fact. Every time a madman with a gun shoots up a school, business or church—no matter how illegal such an act already is—those who care little about American liberty run to microphones and editorial pages to insist that “something” has to be done. Never mind that the “something” they propose wouldn’t be effective at stopping such shootings. And never mind that the “something” they seek to enact nearly always infringes on our Second Amendment-protected right to keep and bear arms.
In the case of red flag laws, most are even worse than that. Rather than infringing squarely on the Second Amendment like a so-called “assault weapons” ban would, ERPOs have the dubious distinction of walking all over about half of the Bill of Rights. Supporters of such laws have, in effect, said to hell with freedom—period.
How They Work
In truth, red flag laws turn the concept of innocent until proven guilty upside down. While they vary somewhat by state, most such laws allow family members or other acquaintances to ask a state court judge to confiscate firearms from someone they believe poses a threat to their safety. In most cases, a hearing is held where the petitioner can present “evidence” that the person in question should have his guns taken.
The person under consideration for having his guns confiscated might not even be aware that such proceedings are taking place. In fact, an ERPO can be approved against these citizens without their having a single opportunity to present evidence of why they should not be suddenly deprived of their constitutional right to keep and bear arms.
In many cases, the people whose guns are to be confiscated have no idea such an order has been filed, much less approved by a judge. So, when police officers show up at their door with a court order to “collect” their firearms, it’s understandable that some might become irate.
After all, they’ve just seen the Bill of Rights shredded right before their very eyes. To get to that point, the judge enforcing the red flag law has already deemed it acceptable that an American citizen be deprived of his or her constitutional rights based on evidence from a third party without being convicted, arrested or even charged with a crime, and that such a citizen can be deprived of his or her right to keep and bear arms without being given an opportunity to argue why such action isn’t acceptable.
As Charles Cooke of National Review recently wrote; “by sending police to confiscate firearms under such red flag laws, the state government is going so far as to say that a simple ‘reasonable’ standard can be substituted for more rigorous evidentiary standards consistent with the deprivation of an enumerated right.”
We all know enough about the law to know such an action is a violation of the U.S. Constitution. Governmental jurisdictions can’t just toss an American citizen’s freedom under the bus with no due process in order to make a certain segment of society feel somehow “safer” and like they “did something.” Can they?
For people who have their guns taken for no reason, it’s just tough luck. In some states, you can petition the court to hear your argument of why you shouldn’t have been deprived of your constitutional rights, but it could take weeks or even months to have your case heard—if the judge decides to do so. In the meantime, you’re no longer a free American citizen; certainly not free to defend yourself from a violent criminal with the best tool to do so if the situation should arise.
All that said, the U.S. Constitution mandates that no one shall be “deprived of life, liberty or property without due process of law.” Even a fool can see that every red flag law currently in existent violates that simple premise.
Ironically, those working for the Rhode Island ACLU even realized how dangerous that state’s red flag law is. In a March 2018 report, the group wrote: “It is worth emphasizing that while a seeming urgent need for [the law] derives from recent egregious and deadly mass shootings, [the law’s] reach goes far beyond any efforts to address such extraordinary incidents. As written, a person could be subject to an extreme risk protective order (ERPO) without ever having committed, or even having threatened to commit, an act of violence with a firearm.”
ERPOs and Law Enforcement
To say that some in law enforcement are strongly against red flag laws would be putting it mildly. When red flag laws were debated last year in Colorado, nearly half of the state’s sheriffs vigorously fought against the proposal. (It passed, despite the sheriffs’ protests.)
As Weld County Sheriff Steve Reams put it when announcing his intentions to not enforce the law if it were passed: “I’m refusing to enforce a law I believe is unconstitutional, and I believe my constituent base is in agreement. I can’t enforce a law that I believe goes against our state Constitution or our federal Constitution.”
Other Colorado sheriffs, dozens in fact, agreed with Reams. Delta County Sheriff Mark Taylor explained, “The biggest concern is we are having to order law enforcement into somebody’s home without any kind of crime being committed or any kind of investigation into why we are going to someone’s home to seize their property.”
Constitutional issues aside, city, state and county governments ordering law enforcement officers to confiscate firearms from their constituents not even suspected of a crime does a grave disservice to those officers. Not only does it put them in needless peril, but it puts them in the position of possibly having to defend themselves against someone who should never have had contact with law enforcement in the first place.
Also, such efforts at confiscation further endanger the relationship between law enforcement officers and a citizenry that has become increasingly dissatisfied with the government entities that employ those officers. To transform officers into simple confiscation agents for unconstitutional laws and corrupt judges could further demean them in the eyes of those whom they swore to protect and serve. The resulting damage to this important relationship by enforcement of red flag laws would likely be very difficult to reverse in the future.
The Federal Movement
Not content that states throughout the nation are trampling the rights of law-abiding gun owners through red flag laws, cynical federal politicians are jumping on the bandwagon. Of course, as with most proposals for gun control, the key aspect of proposed federal legislation is “control.”
In the U.S. House of Representatives, even some Republicans are aligning with anti-freedom Democrats to push for a law that would allow confiscation of weapons from those who have committed no crime. And there are rumblings that some Republican leaders might also jump on the bandwagon.
Even President Donald Trump has shown himself to be at least somewhat amenable to passage of such laws. He recently urged members of Congress to back efforts that would encourage states to adopt red flag legislation.
At the same time, in one of his daily tweetstorms, the president showed exactly how such laws could be abused—and why they should never be approved at any level. Referring to CNN host Chris Cuomo’s recent wild-eyed rant on the air, Trump tweeted, “Would Chris Cuomo be given a Red Flag for his recent rant? Filthy language and a total loss of control. He shouldn't be allowed to have any weapon. He's nuts!”
Of course, Cuomo, while wrong, was also well within his rights protected by the First Amendment to say what he said. He might have passed the point of civil debate, but he broke no law. Should a politician—in this case the president—be able to determine that Cuomo shouldn’t be able to practice his Second Amendment rights solely for practicing those protected under the First Amendment? The answer is, of course not.
That’s the same quandary faced by Second Amendment supporters over the past several years as those who hate guns and gun owners have become shriller in their rhetoric. Voice your opposition to red flag laws and other gun control measures, and you’re shouted down as someone who doesn’t care about people who were murdered by violent criminals. The insinuation is that if you oppose red flag laws, you must support mass murder.
Of course, that’s ridiculous. But if the so-called “mainstream” media shout it on television, day in and day out, some people with poor analytical skills will begin to believe it is true. And if that same media promotes red flag laws as the “solution” to mass shootings over and over and over, many people begin to believe that lie, too.
Recent calls to examine social media posts of prospective gun buyers are another way some politicians are seeking to clamp down on the Second Amendment by neutering gun owners’ First Amendment rights.
Last December, two New York lawmakers proposed a measure that would require law enforcement to examine internet history of those applying for the state’s unconstitutional firearms license. The bill would have required police search a year of an applicant’s Google, Bing and Yahoo history, along with his or her past three years of Facebook, Twitter and Instagram usage. The state police would then determine if an applicant was suitable for handgun ownership. A similar measure was proposed in Illinois.
It’s easy to see how such a horrible idea could be merged with the current red flag law debacle to the detriment of law-abiding gun owners. How long might it be before the reason a person has his guns confiscated under and ERPO is that he said something “mean” on Facebook, or conducted an internet search that officials deemed inappropriate?
Who’s at Extreme Risk, Anyway?
The term Extreme Risk Protective Order should raise the question of who, exactly, is at extreme risk. In this era of early-morning, no-knock raids by heavily armed SWAT teams, law-abiding gun owners and their families are becoming more at risk than ever before. When such raids occur, police regularly enter with guns drawn, pointed at whoever enters the room.
Such raids are always perilous for police and “suspects” alike. But to put families whose family member isn’t even suspected of committing a crime into such a situation is unfathomable. How long might it be before some innocent person’s wife or kids suffer the same fate as Gary Willis, mentioned earlier? How long might it be before a police officer is killed by an otherwise law-abiding person simply trying to protect his or her family after being abruptly awakened by shouting and pointed guns?
And what of the people who originally bring an ERPO request to the court in the first place? It takes little imagination to realize that angry girlfriends, vindictive ex-spouses, even brothers or sisters who feel slighted over some family situation could make such claims in order to make a law-abiding person’s life a living hell. It could even be used as an attempt to “SWAT” someone who might be likely to resist.
The laws, however, don’t provide much justice in that regard. Concerning bogus cases created by those who might want to irreparably harm another and tarnish his or her reputation, many states would prosecute such false accusations under misdemeanor laws, if at all. The anti-Second Amendment Giffords Law Center brags on its website about seeking penalties for falsely petitioning for an ERPO, but, of course, gives no indication that it believes such penalties should be serious.
In the end, it’s important to note that there is no evidence that red flag laws have done anything to reduce gun violence or mass shootings. Indiana has had such a law for 14 years, and Connecticut enacted its red flag law 20 years ago, back in 1999. Other states have also had their red flag laws in effect for several years. If there were any proof that these laws were effective, you can be sure we’d hear about it.
After all, gun-ban groups and anti-Second Amendment politicians are plenty quick to publicize fake studies with contrived results to “prove their point” about firearm bans and other restrictions. But there aren’t even any bogus studies that claim to prove these laws are effective.
That’s because all red flag laws are effective at is reducing essential liberties and putting innocent American citizens in danger. The incremental loss of liberty we experience every time proposals like red flags laws are widely debated and embraced is the true tragedy about which we’ve “got to do something.”
Mark Chesnut is a freelance writer and the owner/editorial director at Red Setter Communications LLC. An avid hunter, shooter and political observer, he has been covering Second Amendment issues and politics on a near-daily basis for the past 20 years.