Sometimes common sense actually comes into play when legislators examine so called “common sense” gun laws. Such was the case this week when the “Red Flag” bill failed to make it out of the House Criminal Justice and Public Safety Committee.
House Bill 687 was a bill that would establish “Extreme Protective Orders” allowing a judge to order the surrender or seizure of someone’s firearms. This bloated bill of nearly 6,000 words attempted to trump rights that the United States Constitution expresses in just seventeen simple words: “...nor shall any State deprive any person of life, liberty, or property, without due process of law.”
Due process is the important point here. That is why both gun rights groups and the ACLU raised serious concerns about this proposed law. The legislation would have deprived someone of their rights and property while shifting the burden of proof from the state to the individual to regain them. Of course the gun rights folks were also upset that the bill specifically sought to take away what many consider a fundamental right, enshrined in the Second Amendment.
That specific focus on firearms was another major flaw with this proposal. A person wishing to cause harm to themselves and others has many potential tools. What about these other potentially deadly items that can be used if someone is determined to pose “an immediate risk to themselves or others?”
According to the language in the bill an “extreme risk protection order” could be granted based on a “threat of violence... whether or not such violence involves a firearm.” So if an individual threatens to run someone over with their car the bill provides that their guns are taken away. Shouldn’t their car also be taken away? How about knives, pills, or access to tall buildings?
If there is real concern for an individual, maybe they should be put in protective custody until they can meet the burden of proof that they are not a danger in order to regain their freedom?
The idea of locking people up in this manner is, of course, unconscionable. But taking away their property rights or Second Amendment rights with less than full due process would be OK?
Another troubling aspect is that this bill would have put another tool in the hands of a vindictive former lover or roommate. There are some who would sign a false affidavit to inflict harm, especially when the penalty for such false reporting, which may be difficult to prove, is simply a misdemeanor. Interestingly, the bill’s penalty for violating such an “extreme risk protective order” is a felony.
The proposed legislation also created its own evidentiary rules, departing from the established rules of evidence known to many attorneys. It created wide latitude for judges, stating, “...the court shall not be bound by the technical rules of evidence and may admit evidence which it considers relevant and material.”
We have no doubt that the stated goal of this legislation, to prevent harm by troubled individuals, is valid. We always have to remember that this type of protection is not without cost. There is a reason our founding documents set such a high bar for depriving individuals of their rights. Our founders knew that our rights are what keep us a free society, and they must be protected above other interests. The seizure of an individual’s property should not be treated more lightly because that property is a gun. True due process must prevail.