The Patriot Post® · In Brief: Red Flag Laws and Due Process
“Beware of misinformation about red flag laws, including critics who say they lack due process, which is not accurate,” lectures PolitiFact, one of the ubiquitous arbiters of digital truth deployed by the Leftmedia primarily to silence conservatives. “Another false claim is that the laws allow people with a grudge, such as an ex-spouse, to take guns away.”
Veteran journalist and Second Amendment advocate David Harsanyi replies with “a thought experiment”:
Let’s imagine a law that empowered a court to temporarily nullify the free speech rights of journalists who are accused by a third party of being potentially dangerous. Let’s imagine that the nullification could be enforced before the journalist even had a chance to respond to any of the allegations leveled against them. Would Poynter argue that the proper standard of due process was met? Because that’s what numerous red flag laws allow.
Let’s then imagine that this law demands the journalist prove their innocence, rather than the state prove their guilt, before reinstating First Amendment rights. And until the journalist can offer a compelling enough argument to convince a judge that they would not commit a crime in the future, the state would continue to strip them of their rights. Would Poynter argue that such a law lacked proper due process? (Considering journalism’s embrace of censorship, perhaps not.)
Let’s imagine now that the law also allowed the free speech rights of journalists to be canceled, not over a pre-crime, but because of “overblown political rhetoric” — as the ACLU, hardly the NRA, warned about Rhode Island’s red flag law. Does Poynter believe people who are offended by, say, social media posts should be able to petition a judge to shut down the rights of individuals? Does that law meet the proper standard of due process? (Again, these days, I’d be nervous to hear the answer.)
As we’ve argued before, the concept of and desire for red flag laws is understandable — surely there’s something we can do to prevent these massacres, people think. But Rule of Law must be protected because even more damage can be done without it.
And as Harsanyi concludes:
Whether it’s the First or Second Amendment, the underlying due process arguments remain the same. It’s one thing — an authoritarian thing, for sure — to argue that some of our rights are so dangerous that we should now ignore fundamental Constitutional protections, but it’s another thing to claim that even pointing out this reality is “misinformation.”