Kafkaesque 'red flag laws' strip gun owners of their constitutional rights
Red flag laws let police confiscate guns without due process. Suspending the Constitution in a secret hearing is a Rubicon from which there is no return
But this is exactly what is at stake with Gun Confiscation Orders — cynically disguised as "red flag laws."
Six states have enacted these laws. At their core, they allow the police to convene a Kafkaesque secret proceeding, in which an American can be stripped of his or her gun rights and Fourth Amendment rights, even though gun owners are barred from participating in the hearings or arguing their side of the dispute.
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The first thing gun owners learn is when police knock on the door — ready to ransack their house and, if they resist, to arrest or even shoot them and their family.
The standard is not whether there is probable cause to believe that the gun owner has committed a crime, as the Constitution would seem to require. Rather, the standard is some subjective determination about whether the owner represents some "danger."
As in the film Minority Report, Americans are stripped of their fundamental constitutional rights based on the subjective possibility of a "future crime." And we know from our limited experience that many accusers lie or make mistakes — even more reach delusional conclusions — and the target is frequently an abused victim who is most in need of the wherewithal to protect against an abuser.
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After a fixed period of time — say, 21 days — the gun owner can ask for a court hearing to restore his or her constitutional rights. But guess what? Few gun owners have the sophistication or the thousands of dollars it would take to hire a lawyer and expert witnesses. And few courts are willing to second-guess themselves and reverse the Gun Confiscation Order which has been issued.
In fact, hundreds of thousands of veterans have lost their gun rights without due process pursuant to a comparable procedure. And recent revelations from the VA suggest that fewer than 50 have successfully invoked this "process" to get their rights back.
But there's a larger issue: If the Constitution can be suspended in a secret hearing, where does this lead?
What if this newspaper could be shut down for 21 days without due process — based on a secret complaint? Or an individual could be arrested or imprisoned for 21 days? Or tortured?
Far from being a "consensus proposal," the suspension of the Constitution in a secret hearing is a constitutional Rubicon from which there is no return.
Michael Hammond is the Legislative Counsel for Gun Owners of America, a pro-gun rights organization representing more than 1.5 million people.
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