Red Flag Laws – Emergency Risk Protection Orders (ERPOs)

Armed American
The Armed American

While claiming to be under pressure to “do something” (even if it’s unconstitutional) about mass shootings, some anti-gun lawmakers across the country, including in Nevada, are endorsing, passing into law, and imposing on the people what they like to refer to as “Red Flag” laws. Funny, when you consider the intended consequences of these laws, that name ironically conjures a cryptic image of a red flag depicting a hammer and sickle, but that’s probably just my “overactive” imagination. 

Anyway, these unconstitutional “Red Flag” laws or “Emergency Risk Protection Laws” (ERPOs) authorize the confiscation of otherwise legal firearms. When some person you’ll probably never see claims that you’re dangerous or “scary” and a judge agrees based on little more than some person’s accusations, that judge will have law enforcement strip you of your firearms and your right to keep and bear arms.

But, these powers to unilaterally strip Americans of their “inalienable” fundamental rights under the Second Amendment without due process are not granted to any anonymous accuser. No judge, law enforcement official, or politician regardless of their delusional self-perceived vaulted position of self-importance has such a right.

Common sense tells us that if a proposed law doesn’t serve its intended purpose, then the advertised intent is most likely not the real motivation behind it. 

Gun possession is a widespread American tradition as well as a constitutionally protected right.

Flimflam “Red Flag” laws are being coerced by force as a way to put an end to mass shootings. But based on the facts, the effect of such a decree is to strip guns from innocent hands, with no regard for the personal safety of law-abiding individuals. Despite the unconstitutional implications and lack of concern for law-abiding citizens, they continue to advance their incremental “forced-confiscation” agenda. It also doesn’t seem to matter whether or not the so-called Red Flag laws work at all. There’s plenty of data to suggest they don’t. Unless, of course, your ultimate objective is “confiscation.”

“…the unconstitutional ‘Red Flag’ laws or ‘Emergency Risk Protection Orders’ authorize the confiscation of otherwise legal firearms when some person you’ll probably never see makes a claim that you’re dangerous or ‘scary’…”

These egregious laws also fail to identify any potential threat that a person may be under that may have caused them to act out of character in the first place. What if the accused person has been threatened or is in danger themselves?

If an innocent person is being threatened or endangered and the person perpetrating that threat then reports them to authorities effectively, conveniently, having them disarmed could lead to a terrible outcome if that person was attacked and harmed after having been wrongfully disarmed. Who would be liable in that situation? The courts for not respecting the accused person’s due process rights? Or for dis-arming an innocent gun owner causing them to become a victim? Possibly even an otherwise helpless woman or disabled person wrongfully deprived of the means of self-protection without ever having committed a crime? Maybe you could blame the accuser for nefariously submitting a false claim? Or would law enforcement be found liable for carrying out an unlawful act that caused the death of an innocent person? 

17 states and the District of Columbia have enacted Red Flag gun confiscation laws. California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii (effective Jan. 1, 2020), Illinois, Indiana, Maryland, Massachusetts, Nevada (effective Jan. 1, 2020), New Jersey, New York, Oregon, Rhode Island, Vermont, Washington.

Such a situation might reveal itself in a court of law if given due process, but not in a “non-due process” situation like that perpetrated under unconstitutional red flag confiscation. In a tragic worst-case scenario such as this, there would be plenty of accountability and liability to go around.

Proponents of red flag confiscation have made it clear that they do not favor Constitutional due-process protection as guaranteed under the Fifth Amendment as a prerequisite to turning you into an innocent unarmed victim.

The Fifth Amendment mandates to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment also uses the same phrase, called the Due Process Clause, to describe the legal obligation of all states.

A study of red-flag laws in Indiana, which allows police to confiscate guns from people they consider to be dangerous, is even more devastating to poor people and minorities. There are potentially overwhelming consequences for those having minimal financial means to defend themselves or “prove their innocence” after being wrongfully declared unfit to own firearms. Public defenders typically aren’t provided in these cases, which robs them of the right to legal defense under the Constitution and to face their accuser in a court of law. In some cases, the overwhelming financial burden placed upon the defendant in this situation results in a permanent loss of all rights to keep and bear arms without ever having been convicted of any crime, putting that person in the precarious position of becoming a potential crime victim themselves.  

This process is ruthless, inhumane, and antithetical to the intent of the Founding Fathers of our great nation, thrusting innocent individuals into an unconstitutional situation of being declared “guilty until proven innocent” while putting their lives in jeopardy without cause or crime. A concept the founders considered unacceptable and repulsive in a free and civil Republic.

Ironically, by adopting the term “red flag law,” promoters inadvertently admit their real motive is not the safety of the public at all. The reason being is because the phrase “red flag law” has been used to masquerade as a safety measure when, in reality, history shows, the implementation of it has been for much more sinister reasons.

The Origin

As early as 1803, when horses and buggies were the primary means of transportation, a steam-driven car dubbed a “road locomotive” navigated throughout the streets of London, England. By 1808 an internal “combustion engine-powered” vehicle was invented and began to appear regularly around the city.  

As a result, there were many notable red flag laws passed to halt any proliferation of automobiles in Europe. 

During that same period throughout the nineteenth century, red flag laws were also imposed here in the United States and for the same reason. These laws were imposed to end the manufacture and operation of motorized vehicles. One of the most infamous Red Flag Laws here in the U.S. passed the Pennsylvania legislature in 1896. 

1896 motorized vehicle.

Bowing to powerful special interests like the railroad industry, buggy manufacturers, and the cattle and livestock industries who felt financially threatened by the advent of the “horseless carriage,” legislators in that state unanimously passed a bill through both houses, which would mandate that all “horseless carriages” being operated on public roadways come to a complete stop whenever they encounter cattle or livestock on the road including equestrians and horse and buggies. They would then be required to disassemble their motor vehicle and “conceal the various components out of sight, behind nearby bushes.” (Yes, I know, I’m serious here.)

Once the horses and equestrians were sufficiently calm and soothed, the motorist could then reassemble their “road locomotive” and proceed on their way. This law was explicitly designed to put an undue burden on the owners of automobiles to the point of making them impossible to operate, thereby crushing the budding automotive industry in favor of protecting wealthy and powerful special interests and campaign donors.

Other equally egregious red flag bills passed in other states that restricted cars to a speed limit of 2mph and required a man carrying a red flag to walk in front of any vehicle carrying a load. Thankfully the law in Pennsylvania requiring the operator to disassemble his car was vetoed by the state’s governor, Daniel H. Hastings. However, it’s a prime example of the extremes political zealots will go to appease special interests against the rights and privileges of their constituencies, and it displays the disingenuous origin of so-called “red flag laws.”

Bottom Line

Legal procedures must be followed for each individual so that no prejudicial or unequal treatment results. The purpose is to safeguard both private and public rights against injustice. The universal guarantee of due process exists in our Constitution for a reason. Red flag laws as applied to firearms violate, disregard, and even trample due-process and are un-American in their concept and application. 

Citizens who are targeted by gun confiscation orders are usually unaware of such warrants. They’re typically not allowed to appear at a hearing or cross-examine witnesses before being forcibly disarmed. This tyrannical disarming of law-abiding citizens is not just a violation of fundamental rights; it could lead to tragic outcomes and has already resulted in one gun owner being killed by police in Maryland. 

Police arriving at a gun owner’s home unannounced, demanding that he turn over his guns, is a recipe for disaster. 

There’s no doubt that tragic mass shootings make everyone want to act to stop them, but, once granted the power to confiscate guns from citizens who have not been charged with any crime nor diagnosed with mental health issues, leads directly to the default tendency of politicians to abuse and exploit that power. The Founders were well aware of that human-flaw when they included the Bill of Rights in the Constitution.

Finally

Droning chants and ear-piercing bewailing to eliminate constitutional principles in this country are leading to some seriously troubling questions. 

On school campuses today, it’s common to assert that “hate speech” equates to violence and, that the mere expression of pro-America ideals constitutes “hate speech” which by current academic standards is grounds for assault, arrest, imprisonment, public humiliation, “doxing,” ridicule, and yes, gun confiscation. Any of which could lead to serious violence, yet, unfortunately, are being tolerated by those very people who purport to oppose violence, lawlessness, property crimes, and bullying. 

Where will it end, and who will stop it?

What standard will be applied by anti-gun politicians, judges, and law enforcement? Will pro-life views disqualify citizens of Second Amendment rights, on the unfounded grounds that pro-life Americans are a threat to women’s health? What about proponents of pro-Constitutional viewpoints portrayed as racists or white nationalists? Will they be deemed a danger to society and disarmed by some anti-gun judge and police force? Where does it end? What is our recourse? Who is going to stop it? Without Constitutional protections, who becomes the arbiter of our rights and liberties? Some politician? A judge? The police? The media? An anonymous accuser? Considering the outright obliteration of our Constitutional safeguards, these are all valid questions not addressed under the “red flag.” 

Nobody is advocating mass shooting or violence of any kind, and I certainly am not. We all agree that mass shootings and murders must stop. But stripping away the inalienable rights of law-abiding citizens is not the answer in our Constitutional Republic. We can do better than that.

Politicians, judges, lawmakers, and police are all sworn under oath to uphold the Constitution of the United States and the Constitution of the states in which they serve. There is no provision for them to skirt that sacred obligation to the American people. Anything less than upholding their oaths of office is unacceptable.

Blatant disregard for individual rights is an issue that all Americans, all gun owners, all proponents of liberty should consider very seriously. The Incremental erosions of freedom set into motion dangerous precedents. History shows that it will eventually come to every doorstep, and when it does, that’s the moment we cease to exist as a free country.

NRA Statement:

“The NRA will continue to oppose any proposal that does not fully protect due process rights. We will only support an ERPO process that strongly protects both Second Amendment rights and due process rights at the same time.”  NRA-ILA Institute for Legislative Action 

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