To the editor:
Federal courts should strike down Red Flag laws, also called Extreme Risk Protection Orders (ERPO). The laws let government take firearms from people not convicted of crimes, often not even arrested. Confiscation can be based on hearsay or dubious claims from disgruntled relatives, neighbors or school officials depending on the state.
The person subject to the order has no notice until the police appear at his door. Resistance is futile. The name of the accuser(s) is kept secret. There is only an ex parte hearing before a judge (one where the defendant is not present).
Constitutional rights are rendered meaningless; the 2nd Amendment right to keep and bear arms; the 4th Amendment right that requires a search warrant to be based on probable cause; the 6th Amendment right to confront accusers in a court of law; and the 14th Amendment rights prohibiting the states from enforcing laws that abridge the privileges and immunities of citizens and deprive a person of life, liberty or property without due process of law.
A person subjected to a Red Flag confiscation faces a difficult, often impossible, task of getting firearms returned. Donald Kilmer, a prominent Second Amendment attorney with a law practice in the Silicon Valley area of California, discussed Red Flag laws at the Second Amendment Foundation Gun Rights Policy Conference held two months ago in Phoenix, Arizona.
Kilmer said the accused person is forced to prove a negative. The cost is steep. Legal fees are about $15,000 at the circuit court level and $25,000 at the appellate court level to attempt to get firearms returned that were lawfully owned to begin with by a defendant who did not commit a crime. Kilmer stated that in 23 years of practicing law he has seen no evidence of preventing a crime due to enforcing a Red Flag law.
Kilmer’s views are supported by Dr. John Lott, Jr., an economist and founder of the Crime Prevention Research Center. Lott is best known for his books showing that gun control does not lower crime rates and states with higher levels of gun ownership have far lower crime rates than states with strict gun control laws.
Lott examined crime data from 1970 through 2017 for states with Red Flag laws. He looked at rates for murder, suicide, armed robbery and burglary before and after the passage of Red Flag legislation. He found no evidence of lower crime rates in any state after passing a Red Flag law.
Red Flag laws masquerade as an attempt to solve mental health problems. Yet the main tenet of all gun control legislation is to assume the gun, not the brain of the user, is the cause of violence.
Some states with Red Flag laws do not also require a mental health evaluation and confinement to a treatment facility, if needed. This raises the question of why a person is walking free if he really is dangerous. The guns are taken using Red Flag laws, but, the cause of the violence is the brain of the user, not the tool he uses. Gasoline, matches, knives, impact weapons, bomb making materials and vehicles are every bit as lethal as firearms. All of these weapons are available to the person intent on doing harm.
It is way past time to end unconstitutional gun control that targets millions of law-abiding gun owners. Focus instead on a better mental health system.