The perils of anti-democratic red flag laws
If a bipartisan Senate deal on guns is passed as a law, it will mark the most significant federal push ever for states to set up red flag laws. This means a judge can order the seizure of firearms merely based on the suspicion that owners of firearms will use them to hurt themselves or others.
Under these proposed red flag laws, family members, law enforcement officials, associates, doctors, etc. can petition a court to confiscate firearms for a period of time if they feel that the owner is a threat.
Currently, nineteen states and the District of Columbia have some form of this law on the books.
In states with no red flag laws, an individual has to be convicted of a felony or committed to a mental institution to lose the right to own firearms. Under red flag laws, firearms can be seized temporarily without any criminal record or a history of mental illness.
The proponents of these laws claim that law-abiding gun owners have nothing to fear. They also say that most shootings are done by mentally unstable people. Hence, if a friend or a psychiatrist, or a family member, can alert a judge about the potential of violence, a shootout can be prevented. Precious lives can be saved.
But this best-case scenario where this law may work is a utopian picture where each and every family member, friend, doctor, law enforcement official, and court judge is both morally upright and objective.
But laws must not be judged solely by how they will be used in utopian climates but also by how they could be misused and exploited by rogue elements in a worse possible scenario.
In democratic nations, courts operate by certain immutable principles.
The accused is pronounced guilty only when it is established beyond a reasonable doubt that the accused did commit a crime.
Most importantly, the accused has a right of defense to contest the charges and make his case. However, with red flag laws, this provision of defense is eliminated totally because it is deemed as an emergency situation where urgent action is needed.
Even the American Civil Liberties Union (ACLU), which by no means is a Second Amendment absolutist, opposed red-flag laws in California back in 2019. The ACLU said red flag laws posed a "significant threat to civil liberties," as they allow employers, co-workers, teachers, and those covered under the existing measure to seek the gun violence restraining order without first allowing the owner an opportunity to contest and make his case.
Beyond violation of due process, in a democracy, a court pronounces guilt solely based on actions and emphatically not on suspicion.
If an armed individual walks up to a bank with the intent to rob it but abandons his plans at the very last minute at the doorstep of the bank, he cannot be convicted of robbing a bank, or on the suspicion that he may have robbed a bank. He also cannot be convicted because he may rob banks in the future. A conviction occurs only if there is proof that he did indeed rob the bank.
What happened to the principle of innocent until proven guilty? The burden of establishing guilt lies with the prosecution. When suspicion becomes the criterion, the individual is guilty until proven innocent. This is Kafkaesque and has no place in a civilized democratic society.
In the end, suspicion is purely a matter of conjecture, perspective, and opinion. When someone looks suspicious, the suspicion often emanates from the inherent bias of the beholder.
For instance, an MSNBC viewer may think of anybody wearing a MAGA hat as suspicious. A CNN viewer may think of maskless vaccine skeptics as suspicious. Another may look at masked individuals with suspicion. A BLM supporter may look at law enforcement officials with suspicion. At times, suspicion is aroused due to appearances or sartorial choice.
There is a random subjectiveness or arbitrariness that informs suspicion; hence, it has no place in a court of law, which should be based on hard evidence.
Beyond the confiscation of guns, the mere stigma of being targeted due to a red flag law will have dire consequences. The grounds may be baseless, but the smirch prevails.
Perhaps employers will be hesitant to retain such an individual. If a judge deemed him unworthy of having a firearm, he has to be unstable. What if he uses an office paperweight as a weapon to strike a colleague he disagrees with? Perhaps employees or clients will be reluctant to work with such an individual? Perhaps friends stay away because they see the individual as a risk. Perhaps landlords evict the individual and hotels refuse accommodation because they do not want to endanger the lives of other guests.
The law can be used to target people and destroy lives.
Most importantly, this law will not prevent dangerous individuals from procuring guns illegally.
What makes laws such as these alarming is the climate in which they are being passed.
The protesters of January 6 were and still are being subjected to draconian punishment. The partisan January 6 Select Committee's sole function is to harass and intimidate political opponents. Parents concerned about their children being indoctrinated with Critical Race Theory were branded as domestic terrorists. Biden called the Trump supporters "the most extreme political organization that's existed in recent American history." Then there is the ominous Disinformation Governance Board, which intends to sit in judgment of the pronouncement of citizens. There were and perhaps still are government-ordered vaccine and mask mandates that override the democratic right of choice. There were lockdowns that restricted the movement of citizens.
It comes as no surprise that the Democrats are supporting these draconian red flag laws.
It is disappointing that Five House Republicans and ten Republican senators are also pushing these laws. Yes, some among these are disgruntled never-Trumper Republicans and some are turncoats, but what about the rest? This continues to be the risk when Republicans retake the House and the Senate, the GOP may be in control but the strings of some puppets may be in the hands of the Democrats.
These red flag laws will be another step toward authoritarianism, where the government encroaches into the private space of the citizen.
This is a truly worrisome trend in one of the world's foremost and largest Democracies.