Red Flag Law Gun Confiscation Unconstitutional

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.

By then, Americans had already formed two basic political parties. The Federalists wanted a muscular central government and the Anti-Federalists wanted a loose confederation of states. 

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?

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New Military Suicide Report May Revive Debate Over Gun Restrictions

military suicides

A new report from the Defense Department is likely to revive debate over the prospect of using “means restriction” — limiting access to firearms — as a way to reduce the number of suicides among U.S. troops.

According to a DoD report on military suicides in 2017 released Wednesday, two-thirds of suicides among active-duty personnel that year were by firearm, a statistic consistent with the previous five years.

Of the 309 suicides among active-duty troops in 2017, firearms played a role in 202 deaths. Most were privately owned guns, not service weapons.

In a study published last month in JAMA Network Open, researchers found that the suicide rate among soldiers who owned guns was higher than that for their peers who didn’t. And storing a loaded gun at home or carrying one was associated with a fourfold increase in the odds of suicide death among soldiers.

The study suggested that promoting separate storage of guns and ammunition, as well as discouraging public carry when not on duty, could reduce the military suicide rate, which in 2017 was nearly 22 deaths per 100,000.

“In addition to gun ownership, ease and immediacy of firearm access were associated with increased suicide risk,” wrote Catherine Dempsey, a researcher at the Center for the Study of Traumatic Stress at the Uniformed Services University of the Health Sciences, and others. “Discussion with family members and supervisors about limiting firearm accessibility should be evaluated for potential intervention.”

As the Pentagon and Department of Veterans Affairs gear up for their biennial suicide prevention conference in August, lawmakers and analysts are weighing the feasibility of restricting firearms access among troops and veterans who have all been trained to shoot and many of whom own their own weapons.

During a House Veterans Affairs Committee hearing in April, New York Democrat Rep. Kathleen Rice said any discussion on suicide among service members can’t be “adequately addressed … without talking about guns, firearms.”

“It’s been proven,” Rice said, “that restricting access to firearms may reduce suicide rates.”

At a separate hearing, Terri Tanielian, a researcher at Rand Corp. who has studied the topic extensively, said policies must “be created and acted and tested” to reduce access.

“We must … promote firearm safety among veterans … policies that directly address the risk that firearms pose to veterans,” she said. “It must be acceptable for health care providers, leaders, friends and family to ask about firearm access, discuss safe storage and discuss appropriate removal of firearms from individuals who are at highest risk of suicide.”

Discussions on means restriction are challenging in a community where many members privately own guns and have a low incidence of weapons-related infractions.

“It’s important to note that having access to a firearm doesn’t make somebody suicidal,” Michael Anestis, an associate professor of psychology at the University of Southern Mississippi told CNN following the release of Dempsey’s research. “It’s not that access to a gun puts the thought in someone’s head and makes them suicidal.”

Dempsey noted that her group’s research showed that simple counseling focused on keeping ammunition and firearms separate and limiting the amount of time a person carries a weapon in public can help.

“Outside the realm of mental health research, focus on these types of firearm safety variables has been shown to significantly improve firearm storage practices,” the researchers wrote.

According to the 2017 DoD Suicide Event Report, the suicide rate for active-duty troops was 21.9 deaths per 100,000 members, a rate similar to the 2016 rate of 21.5 per 100,000.

The rates for the individual services per 100,000 were 24.3 for the Army, 23.4 for the Marine Corps, 19.3 for the Air Force and 20.1 for the Navy.

In 2016, they were 26.7 for the Army, 20.1 for the Marine Corps, 19.4 for the Air Force and 15.3 for the Navy per 100,000.

The age-adjusted civilian rate, which includes American civilians as well as members of the military, is 17.4 per 100,000, according to the Pentagon.

The rates for Reserve and Guard members remain significantly higher than active-duty deaths: In 2017, the rate for Reserve members was 25.7 per 100,000 and 29.1 for the Guard.

In the report, the Pentagon noted that the 2017 figures were “not statistically significantly different from 2014 to 2016 rates.”

Officials reached this conclusion by comparing the 2017 rates with the annual and three-year average suicide mortality rates among U.S. troops.

The Veterans Crisis Hotline is staffed 24 hours a day, seven days a week, at 800-273-8255, press 1. Services also are available online at www.veteranscrisisline.net or by text, 838255.

— Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter at @patriciakime.

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

Picture of Colorado Red Flag Law Map

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.”

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Colorado Sheriff Willing To Go To Jail Rather Than Enforce Proposed Gun Law

Weld County Sheriff Steve Reams

Colorado Sheriff Willing To Go To Jail Rather Than Enforce Proposed Gun Law

CNN: Weld County Sheriff Steve Reams disagrees so much with a gun bill making its way through the Colorado legislature that he’s willing to go to jail rather than enforce it.

“It’s a matter of doing what’s right,” he said.

He’s not the only one who feels so strongly. The controversial “red flag” bill aims to seize guns temporarily from people who are deemed to be a threat to themselves or others.

Colorado’s state Senate passed the bill Thursday by a single vote, without any Republican support, and the bill is expected to pass the House, possibly this week. With Democratic majorities in both chambers, state Republicans have too few votes to stand in the way.

But more than half of Colorado’s 64 counties officially oppose the bill. Many have even declared themselves Second Amendment “sanctuary” counties in protest.

Failure to enforce a court order to seize a person’s guns could mean sheriffs being found in contempt. A judge could fine them indefinitely, or even send them to jail to force them to comply.

Reams says it’s a sacrifice he’d be forced to make.

What is the bill?

Colorado’s “extreme risk protection order” bill would allow a family member, a roommate, or law enforcement to petition a judge to take someone’s firearms if they are deemed to be a danger to themselves or others.

The push for legislation followed the death of Zack Parrish, the 29-year-old Douglas County sheriff’s deputy killed in 2017 by a man with an arsenal of weapons who authorities said had a history of bizarre behavior, including threats to police.

Parrish’s former boss, Sheriff Tony Spurlock, has been one of the most vocal advocates of the bill and says he believes it could have prevented Parrish’s death. Democratic House Majority Leader Alec Garnett, one of the bill’s primary sponsors, agrees.

The other House sponsor is Rep. Tom Sullivan, whose son, Alex, was killed in the Aurora, Colorado, movie theater shooting in 2012.

Garnett says he won’t lose any sleep if Reams or another Colorado sheriff opts for jail instead of enforcement of a court order.

“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. 

What’s so controversial?

Gun rights activists, and an increasing number of law enforcement leaders, say the bill goes too far.

David Kopel, a constitutional law expert who has written extensively about gun policy in the United States, says he thinks the bill is generally a good idea but that he has serious reservations about how it is written — in part because of outside influence.

“The gun ban lobbies are getting more and more extreme and aggressive,” he said.

The bill allows a judge to order a person’s guns to be seized before the person has a chance to appear in court. The bill does require a second hearing with the gun owner present to be held within 14 days, where the owner could make a case to keep the weapons — but if the owner is unsuccessful, a judge could order the guns seized for as long as a year.

Kopel said it would be difficult to prevent a nightmare scenario in which someone misuses the law to take guns away from a person they intend to target violently.

The burden of proof is low — “preponderance of the evidence,” which is the same standard used in civil cases, and a much lower bar than the criminal standard, “beyond a reasonable doubt.”

Reams said he also worries about the potential to aggravate an already volatile person by taking their weapons.

“Going in and taking their guns and leaving the scene, I can’t see how that makes them less of a risk. It just takes one tool away,” said Reams, arguing that a person bent on hurting someone could do it with a knife or a car.

In 2018, a man near Baltimore was killed after officers showed up to seize his weapons based on a court order and “he became irate,” police said.

Garnett dismissed concerns about the bill.

“The opposition is always there. It will always be there and there’s nothing, there’s no amendments or any changes that could be made to bring the sheriff from Weld County onboard,” he said.

He’s right. Reams concedes he would still never support the bill, even with amendments.

a man wearing a suit and tie: Colorado House Majority Leader Alec Garnett© Ken Tillis/CNN Colorado House Majority Leader Alec Garnett

Counties fighting back

A total of 32 counties have declared themselves Second Amendment sanctuary, or preservation, counties or passed similar resolutions. Most vow support for their sheriffs and state that no resources or money will be used to enforce unconstitutional laws. Another two counties already had similar resolutions on the books, and one other has sent a letter to the legislature declaring its opposition.

Even Douglas County, where Deputy Parrish was killed, passed a similar resolution pledging that no county resources would be used in the enforcement of the red flag law, despite Sheriff Spurlock’s support for the legislation.

“We’re putting a line in the sand for what we believe right now is support (for) constitutional laws,” said Douglas County Commissioner Roger Partridge at a contentious meeting in March.

“Why would you tell a law enforcement officer they could not enforce the law because you didn’t like it? That’s craziness,” said Spurlock.

“The idea of a sanctuary county is more of a political move than it is a legal move,” said John Campbell, a law professor at the University of Denver.

Campbell said he also believes there could be civil or even criminal liability for a defiant sheriff if they refuse to seize a weapon and that person goes on to commit a crime with it.

What happens next?

The bill wouldn’t officially come into force until next year, but El Paso County is planning to launch a legal challenge as soon as it is signed into law.

In a statement, Colorado Attorney General Phil Weiser said he is “confident that when and if the time comes, all law enforcement officials will follow the rule of law.”

But Reams is steadfast.

“I’ve explained that time and time again,” he said. “I’m not bluffing.”

Judge Blocks California’s Ban On Magazines Holding More Than 10 Rounds

Picture of High Capacity AR-15 Magazines

California Federal Judge On Friday Ruled Against The States Ban On Gun Magazines Capable Of Holding More Than 10 Rounds

A federal judge in California on Friday ruled against the Golden State’s ban on gun magazines that are able to hold more than 10 rounds.

U.S. District Court Judge Roger T. Benitez said the rule violates the Second Amendment and infringes upon citizens’ rights to defend themselves.

“California’s law prohibiting acquisition and possession of magazines able to hold any more than 10 rounds places a severe restriction on the core right of self-defense of the home such that it amounts to a destruction of the right and is unconstitutional under any level of scrutiny,” he wrote in an 86-page decision.

“California’s ban is far-reaching, absolute, and permanent. The ban on acquisition and possession on magazines able to hold more than 10 rounds, together with the substantial criminal penalties threatening a law-abiding, responsible, citizen who desires such magazines to protect hearth and home, imposes a burden on the constitutional right that this Court judges as severe,” he wrote.

Benitez, a George W. Bush appointee who serves on the bench for the Southern District of California, also wrote that California’s ban unfairly impacts a wide swath of the state’s gun owners, as many choose to use magazines containing over 10 rounds for their defense.

“The magazine ban arbitrarily selects 10 rounds as the magazine capacity over which possession is unlawful. … The ban on magazines that hold more than 10 rounds amounts to a prohibition on an entire class of ‘arms’ that is overwhelmingly chosen by American citizens for the lawful purpose of self-defense,” he ruled.

The National Rifle Association (NRA), which backed the lawsuit, hailed the decision as a “huge win for gunowners.”

“Judge Benitez took the Second Amendment seriously and came to the conclusion required by the Constitution,” NRA’s Institute for Legislative Action Executive Director Chris Cox said in a statement. “The same should be true of any court analyzing a ban on a class of arms law-abiding Americans commonly possess for self-defense or other lawful purposes.”

The gun lobbying group acknowledged that the state was likely to appeal Friday’s decision to the 9th Circuit.

California is widely considered to have some of the strictest gun control policies in the country.

“We are committed to defending California’s commonsense gun laws and are reviewing the decision to evaluate next steps,” California Attorney General Xavier Becerra (D) said in a statement to The Hill.

Look What I Did Here

Picture of Warne Scope Rail and Bobro Acog Mount

Look What I Did at My Day Job! Don’t Tell My Boss

As part of my day job I design and build machines specific to our process. Sometimes I sneak gun stuff into the design. This here is my  latest machine. It takes a continuous strip of paper and moves back and forth creating a spool of paper. Old versions of the machine use tools and screws to secure the tooling. I decided on my new design I would incorporate some firearm technology in the form of a Warne Tikka rail and a Bobro Engineering Acog mount. This has created a tool-less repeatable tool change. It works so well I’m going to incorporate the design into all the older machines. This will be A LOT of Warne rails and Bobro Acog mounts.

This is my own personal inside joke at work and the best part management loves the “reduced downtime and scrap” and “faster changeover”. Also getting my job to support the industry a couple parts at a time.

I wonder how much time will pass before someone comes through the building and recognizes the hardware. On another machine I borrowed something from a revolver. I’ll save that for another day. 

@warnescopemounts @bobroengineering #warnescopemounts #bobroengineering