Judge Andrew Napolitano: Gun confiscation under ‘red flag’ laws is unconstitutional

By Judge Andrew P. Napolitano

When tragedy strikes, as it did in two mass killings this month, there is always the urge to pressure the government do something.

Governments are animated by the belief that doing something — any demonstrable overt behavior — will show that they are in control. I understand the natural fears that good folks have that an El Paso or a Dayton episode might happen again, but doing something for the sake of appearance can be dangerous to personal liberty.

When the Constitution was written, the idea of owning arms and keeping them in the home was widespread. The colonists had just defeated the armies of King George III. The colonial weapon of choice was the Kentucky long rifle, while British soldiers used their army-issued version of Brown Bessies.

Each rifle had its advantages, but the Kentucky (it was actually a German design, perfected and manufactured in Pennsylvania) was able to strike a British soldier at 200 yards, a startlingly long distance at the time. The Bessies were good for only about 80 yards.

Put aside the advantages we had of the passionate defense of freedom and homeland, to say nothing of superior leadership. It doesn’t take any advanced understanding of mathematics or ballistics to appreciate why we won the Revolution.

It is a matter of historical fact that the colonists won the war largely by superior firepower.

Six years after the war was over, delegates met in Philadelphia in secret and drafted what was to become the Constitution. The document, largely written in James Madison’s hand, was then submitted to Congress and to the states, which began the process of ratification.

The concept of a “red flag” law — which permits the confiscation of lawfully owned weapons from a person because of what the person might do — violates both the presumption of innocence and the due process requirement of proof of criminal behavior before liberty can be infringed.

Yet the memory of a Parliament that behaved as if it could write any law, tax any event and impair any liberty, coupled with the fear that the new government here might drift toward tyranny, gave birth to the first 10 amendments to the Constitution — the Bill of Rights.

The debate over the Bill of Rights was not about rights; that debate had been resolved in 1776 when the Declaration of Independence declared our basic human rights to be inalienable. The Bill of Rights debates were about whether the federal government needed restraints imposed upon it in the Constitution itself.

The Federalists thought the Bill of Rights was superfluous because they argued that no American government would knowingly restrict freedom. The Anti-Federalists thought constitutional restraints were vital to the preservation of personal liberty because no government can be trusted to preserve personal liberty.

Second among the personal liberties preserved in the Bill of Rights from impairment by the government was the right to self-defense. Thomas Jefferson called that the right to self-preservation.

Fast-forward to today, and we see the widespread and decidedly un-American reaction to the tragedies of El Paso and Dayton. Both mass murders were animated by hatred and planned by madness. But because both were carried out using weapons that look like those issued by the military, Democrats have called for the outright confiscation of these weapons.

Where is the constitutional authority for that? In a word: nowhere.

The government’s job is to preserve personal liberty. Does it do its job when it weakens personal liberty instead? Stated differently, how does confiscating weapons from the law-abiding conceivably reduce the ability of madmen to get those weapons? When did madmen begin obeying gun laws?

These arguments against confiscation have largely resonated with Republicans. Yet — because they feel they must do something — they have fallen for the concept of limited confiscation, known by the euphemism of “red flag” laws.

The concept of a “red flag” law — which permits the confiscation of lawfully owned weapons from a person because of what the person might do — violates both the presumption of innocence and the due process requirement of proof of criminal behavior before liberty can be infringed.

The presumption of innocence puts the burden for proving a case on the government. Because the case to be proven — might the gun owner be dangerous? — if proven, will result in the loss of a fundamental liberty, the presumption of innocence also mandates that the case be proven beyond a reasonable doubt.

The Republican proposal lowers the standard of proof to a preponderance of the evidence — “a more likely than not” standard. That was done because it is impossible to prove beyond a reasonable doubt that an event might happen. This is exactly why the “might happen standard” is unconstitutional and alien to our jurisprudence.

In 2008 Justice Antonin Scalia wrote for the Supreme Court that the right to keep and bear arms in the home is an individual pre-political right. Due process demands that this level of right — we are not talking about the privilege of a driving a car on a government street — can only be taken away after a jury conviction or a guilty plea to a felony.

The “might happen” standard of “red flag” laws violates this basic principle. The same Supreme Court case also reflects the Kentucky long gun lesson. The people are entitled to own and possess the same arms as the government; for the same reason as the colonists did — to fight off tyrants should they seize liberty or property.

If the government can impair Second Amendment-protected liberties on the basis of what a person might do — as opposed to what a person actually did do — to show that it is doing something in response to a public clamor, then no liberty in America is safe.

Which liberty will the government infringe upon next?

Controversial Colorado Gun Bill Becomes Law 11 Sheriffs Willing To Choose Jail Over Enforcement

Colorado’s controversial “red flag” bill was signed into law by Democratic Gov. Jared Polis on Friday, with more than half of the state’s counties declaring opposition to it and many sheriffs promising not to enforce it at all.

“This is a moment of progress,” said Colorado House Majority Leader Alec Garnett, one of the legislation’s four sponsors. “Today, we did something that was difficult and that is going to save lives.”

Known as the “Extreme Risk Protection Order,” the law will allow a family member, a roommate or law enforcement to petition a judge to temporarily seize a person’s firearms if they are deemed a risk to themselves or others. Fourteen other states have passed similar legislation.
Still, the law now faces major hurdles, with a pro-gun lobby group promising to challenge it in court. Additionally, a growing number of sheriffs in the state have vowed to ignore the law when it takes effect next year, calling it unconstitutional.

Weld County Sheriff Steve Reams told CNN last month that he would rather be found in contempt of court and locked up in his own county jail than carry out a court order to seize a person’s weapon.

At least 10 other sheriffs contacted by CNN are lining up behind Reams, saying they are prepared to go to jail rather than enforce a law they believe would violate a person’s constitutional rights.

“How many judges are going to send all the sheriffs in Colorado who are standing up to this to jail?” wondered Teller County Sheriff Jason Mikesell, who is among the sheriffs willing to choose jail over enforcement.

Garnett said he wasn’t concerned about sheriffs being locked up.
“What I’m going to lose sleep over is, if that’s the choice that they make, and someone loses their life, someone in crisis goes on a shooting spree, (or) someone commits suicide” because a gun wasn’t taken away, he said.

Laws that remove firearms from those considered a safety risk reduce gun-related suicides, study finds
Already, 38 of Colorado’s 64 counties have officially declared their opposition to the bill, and 35 of them have passed formal resolutions against the law. Many of the resolutions declare the jurisdictions to be Second Amendment “sanctuary” or “preservation” counties, and pledge not to allocate resources to enforcement of the law.
Colorado Attorney General Phil Weiser he is “confident that when and if the time comes, all law enforcement officials will follow the rule of law.”
Reams insists he’s not bluffing. So does Prowers County Sheriff Sam Zordel.
“I’ve already asked the coroner if he wanted to come over (to the jail) and get some training,” he said, explaining that if he becomes an inmate, the coroner would be tasked with running the county jail.

Others took a more measured approach.

“I’m willing to go to my jail for it, the only exception would be a totally extreme case and most sheriffs would agree with that,”

said Park County Sheriff Tom McGraw.

The law is meant to be used only in the most extreme cases, but critics believe it will allow for guns to be taken based on a false accusation. A non-partisan analysis of the bill by Colorado’s Legislative Council Staff predicted that the number of false red flag petitions would be minimal, and that the law would only be used 170 times per year.
California and Washington use similar red flag laws even less than that, though a similar law in Maryland is enforced six times more often than the Colorado estimate.

Legal challenges could be on the way

“Rocky Mountain Gun Owners is going to file a lawsuit against the red flag legislation before the end of the session,” the lobby group’s executive director, Dudley Brown, said. The legislative session ends May 3. Brown also said there could be a second lawsuit filed after the bill becomes law, but declined to provide more details.
Brown is also planning recall efforts of “at least 10” state lawmakers who supported the legislation. Two Colorado lawmakers were successfully recalled in 2013 after supporting controversial background check legislation and a restriction on magazine size.
The El Paso County Sheriff’s office initially said the county would file a lawsuit when the legislation became law. The county now says it is still “in the brainstorming phase” of a potential lawsuit, according to county spokesman Matt Steiner.

According to the Giffords Law Center, which lobbies for tougher gun laws, there have not been any successful legal challenges of any similar state laws. There is, however, an ongoing complaint in an Illinois district court asking for an injunction, arguing that the law violates the Second and 14th amendments.
Assuming Colorado’s law withstands a court challenge, defiant local sheriffs are on a legal collision course with the state. State law enforcement agencies like the Colorado State Patrol do “not have the authority to supersede local control,” and seize the guns instead, according to Shelby Wieman, a spokeswoman for Gov. Polis.
Polis is confident that law enforcement will not ignore court orders to seize weapons, but if they do, it would be for the district courts or the state attorney general to resolve.
Ignoring gun laws versus immigration laws
The declaration of a “sanctuary county” borrows the phrasing used by immigration advocates to describe jurisdictions where local law enforcement does not cooperate with federal immigration authorities, even when undocumented immigrants charged with crimes enter local jails.
If it’s OK to ignore immigration laws, why can’t Colorado counties ignore gun laws?
University of Denver law professor John Campbell said local law enforcement “can’t choose not to enforce their state’s law.” But the enforcement of federal laws, such as immigration legislation, are voluntary for local authorities.
If a sheriff were to ignore a court order to seize a person’s guns and they use them to hurt someone, Campbell believes the sheriff could be held liable. Law enforcement has immunity for genuine mistakes, but not for recklessness or blatantly ignoring their legal duty.
“Those are classic conditions to create liability even when people typically would enjoy immunity,” he said.
While the legal obligation to enforce court-ordered gun seizures is different than enforcing immigration laws, Campbell said the outcomes can be the same — someone getting hurt or killed.

In 2015, 31-year-old Kate Steinle was killed by an undocumented immigrant who was released from jail despite a request from federal Immigration and Customs Enforcement (ICE) to turn him over. A federal appeals court ruled last month that Steinle’s parents cannot sue over San Francisco’s “sanctuary” policy that allowed her killer to avoid deportation and walk free.
Garnett said sheriffs should enforce the new gun law, but wouldn’t make a statement on enforcing immigration law.
“Immigration laws are primarily federal issues and I’m not going to get into that,” he said.

Sheriff Reams acknowledged his risk of liability for ignoring a court-ordered gun seizure, but he’s not worried.

“The person who commits a crime against another is truly the person responsible,” he said, adding that if a person is mentally ill, he would use existing laws to detain them for treatment. “We still intend to deal with the person.”