The U.S. Senate Judiciary Committee held an almost 2.5-hour red flag law hearing on March 26, 2019

April 1, 2019 | BUFFALO, N.Y. –The primary thrust of the ‘Red Flag Laws: Examining Guidelines for State Action’ hearing, as outlined by Chairman Lindsey Graham (R-SC) after conceding that passing a federal red flag provision is likely “beyond what the market will bear,” centered on how best to leverage federal resources to goad states into making the same mistake committed by the all-progressive legislature in New York. That is, passing red flag legislation that, by design, infringes on citizens’ Second Amendment right to keep and bear arms, Fourth Amendment right to privacy, Fifth Amendment right against uncompensated property forfeiture, Sixth Amendment right to a trial by jury and to question opposing witnesses, and Fourteenth Amendment guarantee of due process of law.

The committee panel consisted of National Alliance on Mental Illness Senior Policy Advisor Ronald Honberg, Palm Beach County (West Palm Beach, FL) Sheriff Ric Bradshaw, King County (Seattle, WA) Senior Deputy Prosecuting Attorney Kimberly Wyatt, Brady California Legislative Chair Amanda Wilcox, and Independence Institute Research Director Dave Kopel. Honberg and Bradshaw served the important function of imposing a sober and limiting focus on the stigmatization of both the mentally ill and law-abiding gun owners in the context of mass killer events, and the misguided remedy of red flag laws for these modern phenomena. Wyatt, hailing from the progressive enclave of Seattle, WA, was installed to lend the false legitimacy of a government prosecutor to a legislative concept that unilaterally strips citizens of at least five constitutional protections.

However, Wilcox, whose daughter was shot to death by a client at a behavioral health clinic, served as the standard bearer for the type of personal emotional therapy via mass liberty reduction detailed by James Ostrowski, and encouraged often by Imperial Criminal Andrew Cuomo during his gun control victory lap press conferences. The well-worn path exhibited by family members, like Wilcox, of those killed in mass casualty events to then dive head-first into a progressive advocacy organization and call for the mass curtailment of individual civil rights to assist with the processing of personal emotional trauma is toxic to the proper functioning of our constitutional republic. The aforementioned practice results in the type of policy-making by uninformed mob rule that does more to chip away at the Bill of Rights than achieve progressives’ stated goal of reducing ‘gun violence.’ This argument is detailed by Independence Institute Research Director Dave Kopel in the executive summary he submitted to the U.S. Senate Judiciary Committee on March 26, 2019 [VERBAL REMARKS IN ABOVE VIDEO]:

“‘Red flag’ laws or ‘extreme risk protection orders’ have been enacted in several states. While the idea for these laws is reasonable, some statutes are not. They destroy due process of law, endanger law enforcement and the public, and can be handy tools for stalkers and abusers to disarm the innocent victims.

Nearly a third of such orders are improperly issued against innocent people.

The Conference of Chief Justices asked the Uniform Law Commissioners to draft a national model red flag law, but the Giffords organization blocked the effort – lest it offer an alternative to the extreme and reckless system being pushed by Giffords and related groups, most notably the Bloomberg entities.

When Confucius was asked what would be the first step if a government sought his advice, he answered, ‘It would certainly be to rectify the names…. If the names are not correct, language is without an object.’ ANALECTS, 13:3. Bills that claim to be about ‘Extreme Risk Protection Orders’ are not correct; the bills cover much lower-level risks, or just ‘a danger.’ Likewise, the term ‘red flag’ is dubious because some bills label as dangerous the peaceable exercise of constitutional rights. A more accurate name for these laws is ‘gun confiscation orders.’

Such orders can be legitimate when fair procedure accurately identify dangerous individuals. Such laws include the following features:

• Petitions initiated by law enforcement, not by spurned dating partners or relationships from long ago.
• Ex parte hearings only when there is proof of necessity.
• Proof by clear and convincing evidence, which has been corroborated.
• Guarantees of all due process rights, including cross-examination and right to counsel.
• Court-appointed counsel if the respondent so wishes.
• A civil remedy for victims of false and malicious petitions.
• Safe and orderly procedures for relinquishment of firearms.
• Strict controls on no-knock raids.
• Storage of relinquished firearms by responsible third parties.
• Prompt restoration of concealed carry permits for the falsely accused.
• Prompt return of firearms upon the termination of an order.
• Renewal of orders based on presentation of clear and convincing proof.
• Not allowing time-limited orders to be bootstrapped into lifetime federal prohibition.

The above features can be found in some state laws, as will be detailed below.

Congressional funding incentives should be provided only to states whose red flag laws fully respect all constitutional rights and provide for fair due process.” [FULL TESTIMONY HERE]

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As Kopel pointed out, nearly a third of red flag orders are improperly issued against innocent people. He backs this contention up with real data in a Mach 2019 opinion piece, where he stated the following:

“The error rate of ex parte confiscation orders is very high. In Connecticut, once a judge eventually hears the respondent’s side of the story, 32 percent of confiscation orders are overturned. Michael A. Norko & Madelon Baranoski, 46 Conn. Law Review 1609, 1619 (2014).

A study in Marion, County, Indiana, reported similar results. George F. Parker, Circumstances and Outcomes of a Firearm Seizure Law: Marion County, Indiana, 2006-2013, 33 Behavioral Science and the Law 308 (2015) (29 percent).”

Later in the March 26, 2019 U.S. Senate Judiciary Committee red flag law hearing, Sen. Chuck Grassley (R-IA) correctly asked members of the panel “would you agree that the appropriate level of judicial scrutiny for the Second Amendment is strict scrutiny?” He pressed some panel members to state whether or not they agree. Given that the level of judicial scrutiny for Second Amendment legal issues is likely to be reviewed later this year by the U.S. Supreme Court, which could impact the degree to which red flag laws across the nation are overturned or upheld, Grassley’s question was an important one to ask.

Injecting into the hearing several contrarian views to Grassley’s was Sen. Corey Booker (D-NJ), who at one point stated “I’m 49 years old and, in my lifetime alone, there’s been more people who have died in our country due to gun violence than all the wars combined going back to the Revolutionary War.”

If we’re going to start analyzing the benefits and costs of private American gun ownership on the basis of body count alone, I’d like to remind Sen. Booker that, within the same historical period he cited in his comment, U.S. wartime casualties have totaled no more than 1,403,062, while government-perpetuated genocide and mass murder (democide) resulted in 169,202,000 deaths in just the 20^th century alone. That’s 167,798,938 more deaths caused by tyrannical government in just 100 years than all American combat deaths sustained through the totality of U.S. history, and it seems like a pretty clear win for the benefits of private gun ownership over its perceived costs. I detailed a similar argument last month when announcing 2AWNY’s New Zealand AR-15 Owner Resettlement Initiative:

“It is a clear fact that, within the 20th and 21st centuries alone, governments across the globe have perpetuated instances of genocide and mass murder against their own citizens (democide) resulting in hundreds of millions of human deaths. Furthermore, acts of democide are playing out in real time before our very eyes in Venezuela, where New Zealand-style restrictions banning certain classes of guns are what have backed Venezuelan citizens into the defenseless corner they now find themselves while starring down the barrel of government tyranny. Finally, the aforementioned democide, perpetuated by governments that began as democracies like that of Venezuela, clearly illustrates that elections, institutions, and procedures alone are insufficient to safeguard a society from the state-sponsored mass murder of its own citizens.

It is a clear fact that the individual loss of life experienced as a result of overall rare mass killer events is significantly dwarfed by the collective loss of life directly resulting from democide, as referenced above.

Given the prior two points made above, and because government has demonstrated a clear propensity to trend tyrannical over time and kill its citizens en masse, the societal benefits of private firearms ownership far outweigh the individual costs.”

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About 90 minutes into the U.S. Senate Judiciary red flag hearing, a progressive charlatan interrupted statements from Sen. Ted Cruz (R-TX), screeching “End gun terror! End gun terror! Thank you Jacinda Ardern for your leadership. End gun terror! End gun terror! Assault weapons assault people! Enough! Enough! Do something! Follow the leadership of Prime Minister Jacinda Ardern! Do something! People are dying! You’re killing them!”

I feel compelled to argue to the contrary. As I explained in detail here to a rabid WNY progressive in late February 2019, it is actually the pernicious ideology of progressivism that is killing people given that it “has played a massive roll in degrading society to the point where individuals descend into a pit of bottomless nihilism where they can no longer find joy or meaning in anything they do, and therefore commit atrocities like mass killings. When this country wakes up from the nightmare that is progressivism and dispenses with this useless ideology, mass killings will cease to become an unfortunate feature of modern life.” Therefore, it follows that so-called ‘assault weapons’ DO NOT, in fact, assault people. However, deranged progressives most certainly do.

Furthermore, New Zealand’s government overlords were able to impose a mass extermination of private gun ownership in less than a week’s time last month because they direct an overreaching state that imposes major totalitarian-style restrictions on the natural rights of the individual. First, New Zealand provides no constitutional civil rights protections to its hundreds of thousands of gun owners, and controls its population via a unicameral legislature, providing no opposing legislative body to act as a check against emotion-based, anti-liberty gun control imperial edicts in the wake of a mass casualty event. Second, New Zealand routinely decimates the natural free speech rights of its citizens via the nation’s Chief Censor David Shanks, who criminalizes certain forms of free speech and punishes violators with stiff monetary fines and onerous prison sentences. Clearly, a primary reason that kiwis are rolling over and accepting the mass gun confiscation designs of their paternal government centers on their habituation to decades of free speech denial, hence molding them into obedient subjects of their imperial rulers.

In summation, I will remind both the U.S. Senate and Jacinda Ardern-worshiping progressives that America is an armed society, and one that, unlike New Zealand, respects the First Amendment rights of its citizens. We also have a Second Amendment, and it works. Given this, certain policy prescriptions – like red flag laws, the New York State SAFE Act, New Zealand-style mass ‘assault weapon’ confiscation, and other unconstitutional imperial gun control edicts – are taken off the table for U.S. society. For those progressives unwilling to accept this reality, I’d recommend they emigrate to the apparent progressive paradise of New Zealand, as it appears many progressive Americans have attempted to do in the wake of the mosque terror attacks there. However, this may all be for naught as the island nation apparently saw wisdom in actions taken by U.S. President Donald Trump and enacted a “Kiwis-first approach to immigration” in April 2017.

Steve Felano

2AWNY Civil Rights Advocate

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2AWNY is a force multiplier for the numerous Second Amendment civil rights advocacy enterprises forming the backbone of Western New York’s vibrant gun culture. We act as a 2A news and information distribution, policy analysis, and organizational driver for the many interest groups seeking to defend and expand Second Amendment civil rights throughout the region. 2AWNY is dedicated to assisting in the organization, promotion, and funding of legal challenges to the unconstitutional New York State gun control regime. We seek to make Western New York the epicenter of New York State’s Second Amendment civil rights renaissance. Learn more at WWW.2AWNY.COM.