April 13, 2023
Last year, following mass murders by deranged individuals both in his home state and around the country, Tennessee Gov. Bill Lee made it quite plain that more restrictive gun control laws were not an appropriate response and he wouldn’t consider further restrictions.
“We’re not looking at gun restriction laws in my administration right now,” Lee told reporters in early June. “There’s one thing to remember, criminals don’t follow the laws. Criminals break laws.
“We can’t control what we can’t control.”
Many who work in the gun industry are very disappointed by yet another Republican caving in to gun control especially since Governor Lee signed Constitutional carry at Beretta’s new manufacturing plant in his state back in June of 2021. Unfortunately for lawful gun owners in the Volunteer State, Gov. Lee is now singing a different tune. On Tuesday, Lee signed an executive order making the state’s background check process for purchasing firearms more restrictive and, at the same time, encouraged lawmakers to pass a so-called “red flag” law.
As Firearms News readers are well aware, 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, or woman, 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, Extreme Risk Protection Orders (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.
Nineteen states plus the District of Columbia have already implemented ERPOs. And so far, no jurisdiction has been able to craft one that doesn’t infringe upon the due process of citizens in the state.
As the National Shooting Sports Foundation explains it, normally to deny a fundamental civil liberty there must be a pre-deprivation hearing on notice and with an opportunity to participate, unless given the exigencies of the circumstances it is not feasible to hold a pre-deprivation hearing. In that case, due process requires a prompt post-deprivation hearing within 24 to 72 hours.
For example, when a person is arrested and in custody, he or she must be arraigned before a judge within 24 to 72 hours. It is unconstitutional and a violation of due process for one to be held in jail for a week or more before being arraigned before a judge. Several of the existing state red-flag laws do not provide for a pre-deprivation hearing. They also do not provide for a post-deprivation hearing until 14 days have passed.
In the end, two weeks to wait for a due process hearing when a person’s fundamental civil liberties—in this case their Second Amendment right to keep and bear arms—has been infringed upon by the government is simply not consistent with the constitutional requirements of the Due Process Clause.
Additionally, in the case of the trans-identifying murderer at the Nashville grade school, a red-flag law would have made no difference, as she had not previously done anything to make anyone suspect mass murder was on her mind.
Interestingly, President Donald Trump supported a federal ERPO during his time in office, as did some Republicans in Congress. Trump also thanked then Governor Rick Scott for the gun control he signed into law which also included a red flag law. Hopefully pro-gun lawmakers in Tennessee will realize the truth about red-flag laws and due process, and will do their part to protect the rights of the state’s lawful gun owners.
About the Author
Freelance writer and editor Mark Chesnut is 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 over 20 years.
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