‘There are a lot of downsides to passing more legislation that doesn’t do anything positive…’
(Dan E. Way, Liberty Headlines) As prospects for federal red flag gun-seizure legislation wilts, mass arrests have taken place nationwide over shooting threats since the mass slayings in El Paso, Texas, and Dayton, Ohio.
The police action raises questions whether federal legislation is even needed, and if constitutional rights to keep and bear arms, and due process are endangered by existing laws.
According to a CNN story on Thursday, nearly 30 people were arrested between Aug. 4 and Aug. 21 in multiple states. Some were school children, some were adults. They made threats online and elsewhere that raised concerns among law enforcement officials. Their hit lists included schools and universities, government buildings and law enforcement officers, workplaces and unspecified targets.
Some threats were more explicit than others, and not all involved guns. Some of the menacing messages warned about the use of explosives.
The arrests follow a directive from FBI Director Christopher Wray ordering its field offices to ratchet up their threat assessments in the aftermath of the El Paso and Dayton slayings of 31 people.
“The FBI remains concerned that U.S.-based domestic violent extremists could become inspired by these and previous high-profile attacks to engage in similar acts of violence,” the agency said in a press release. “The FBI asks the American public to report to law enforcement any suspicious activity that is observed either in person or online.”
Red flag laws — sometimes called extreme risk protection orders — empower courts to order confiscation of guns from a person deemed to be an imminent danger to himself or others. Seventeen states and Washington, D.C., have passed such laws.
In the recent spate of arrests, law enforcement officers confiscated weapons and ammunition. Greg Wallace, a constitutional law professor at Campbell University and Second Amendment expert, said that wouldn’t pose Second Amendment issues or violate Fourth Amendment protections against unreasonable search and seizure.
“Once you are arrested police can confiscate your arms,” Wallace said.
Red flag laws are different.
“There is no probable cause that you’ve committed a crime, or are about to commit a crime,” Wallace said.
Courts issue gun confiscation orders in ex parte settings — only one side presents a case to a judge. A jilted lover or someone with an ax to grind could be the complainant. The person deemed to be a risk does not present a defense. Orders are based on the low bar of preponderance of evidence.
“It’s really a civil action. It’s not a criminal action,” Wallace said.
There’s no arrest, no deprivation of liberty, and no detention.
U.S. Sen. Marco Rubio, R-Florida, introduced federal red flag legislation in 2018 and 2019. Sens. Lindsey Graham, R-South Carolina, and Richard Blumenthal, D-Connecticut, proposed legislation recently to create a federal grant program to entice states to adopt red-flag laws. A similar bill died last year.
Politico quoted U.S. Senate Homeland Security Chairman Ron Johnson as saying the appetite for extreme risk protection order laws is waning in that chamber.
“I don’t anticipate we’re going to pass a federal red flag law,” Johnson said. “There are a lot of downsides to passing more legislation that doesn’t do anything positive.”
Charles C.W. Cooke raised red flags of his own in a column written for America’s 1st Freedom, the NRA’s official journal. He noted that half of the state’s sheriffs said they would risk jail time rather than enforce what they deem the state’s unconstitutional gun seizure law.
“As the gun control movement becomes increasingly radical and increasingly national — and as it is forced by public opinion and judicial protection to find more ‘creative’ ways to limit the right to keep and bear arms — it seems likely that government officials will increasingly find themselves torn between honoring their promises [to uphold the Constitution] and doing their jobs,” Cooke wrote. “And not, it must be noted, purely on Second Amendment grounds, for, alarmingly enough, the road to limiting the Second Amendment seems often now to run through the rest of the Bill of Rights, too.”