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Tags: red flag law | guns | shooting | dayton | el paso

When Considering Red Flag Laws, Keep Constitutional Due Process Intact

When Considering Red Flag Laws, Keep Constitutional Due Process Intact
Democratic presidential candidate and Ohio congressman Tim Ryan (R) chats with U.S. Senator Rob Portman (R-OH) as the two crossed paths while donating blood at the Community Blood Center on August 05, 2019 in Dayton, Ohio. The center put out a call for donations following yesterday's mass shooting in the nearby Oregon District. (Scott Olson/Getty Images)

Michael Dorstewitz By Wednesday, 07 August 2019 03:04 PM EDT Current | Bio | Archive

It’s human nature in the aftermath of any tragedy to want to do something — anything — to prevent a recurrence. The Saturday mass shootings in El Paso and Dayton are no exception.

Republican Sens. Rob Portman of Ohio and Marco Rubio of Florida both called for so-called “red flag” laws — emergency risk-protection orders (ERPO) that would permit law enforcement or family members to prevent access to firearms by those who may present a danger to themselves or others.

Portman said, “Some of the legislative ideas may not make a difference. This one would I think if you could come up with a way to remove a gun from somebody’s possession.”

Rubio already has one at the ready — the Extreme Risk Protection Order and Violence Prevention Act — which he introduced in March in response to the Parkland, Florida shooting, and he’s asking that the Senate Judiciary Committee consider it at its earliest convenience.

“This bill remains a priority of mine, and acknowledges the very unfortunate truth that we exist in a world where others seek to do harm,” Rubio wrote in a letter addressed to Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., and ranking member Dianne Feinstein, D-Calif., on Tuesday.

Rubio’s bill wouldn’t actually provide for a red flag process, but would rather incentivize states to adopt their own ERPO version. A number of states, including California, Oregon, and Vermont, have already adopted some form of ERPOs.

To the surprise of many, the National Rifle Association has no problem with red flag laws — as long as the fundamental constitutional guarantees of due process are met.

The NRA would require that:

  • "The process should include criminal penalties for those who bring false or frivolous charges.
  • An order should only be granted when a judge makes the determination, by clear and convincing evidence, that the person poses a significant risk of danger to themselves or others.
  • The process should require the judge to make a determination of whether the person meets the state standard for involuntary commitment. Where the standard for involuntary commitment is met, this should be the course of action taken.
  • If an ERPO is granted, the person should receive community-based mental health treatment as a condition of the ERPO.
  • Any ex parte proceeding should include admitting the individual for treatment.
  • A person’s Second Amendment rights should only be temporarily deprived after a hearing before a judge, in which the person has notice of the hearing and is given an opportunity to offer evidence on his or her behalf.
  • There should be a mechanism in place for the return of firearms upon termination of an ERPO, when a person is ordered to relinquish their firearms as a condition of the order.
  • The ERPO process should allow an individual to challenge or terminate the order, with full due process protections in place.
  • The process should allow firearms to be retained by law-abiding third parties, local law enforcement, or a federally licensed firearms dealer when an individual is ordered to relinquish such firearms as a condition of the ERPO.
  • The individual must also have the ability to sell his or her firearms in a reasonable time without violating the order."

That first suggestion — criminal penalties for false or frivolous claims — is important. An ERPO, after all, turns the presumption of innocence standard on its head. Instead of “innocent until proven guilty,” the person affected by the order is guilty until he can prove his innocence.

No state that’s passed red flag laws have met the NRA’s guidelines, nor do proposals introduced in Texas and Tennessee.

Former NRA spokeswoman and talk radio host Dana Loesch observes that laws already in place could have prevented tragedies but failed, when they weren’t properly applied, and cites the shooters in Parkland and Dayton as prime examples.

“These two monsters were walking red flags with access to firearms and yet, with all of the laws available to adjudicate them ineligible to carry or purchase guns, they continued unabated until the unthinkable,” she said.

In a rush to judgement last year, Rep. Brian Mast, R-Fla. called for a ban on semi-automatic rifles such as the AR-15 in response to Parkland, stating, "I cannot support the primary weapon I used to defend our people being used to kill children I swore to defend."

Mast acted in haste that time. Not only is an AR-15 not “the primary weapon” he used in combat, but Congress had gone that route before.

Congress passed a 10-year “assault rifle” ban, as well as a ban on so-called high-capacity magazines. They had no effect on gun-related homicides whatsoever.

Portman and Rubio are on the right track. It is, after all, the person who pulls the trigger that’s to blame — not the weapon.

I just hope they consider the NRA’s guidelines and don’t act in haste out of a desire to be first.

Michael Dorstewitz is a retired lawyer and has been a frequent contributor to BizPac Review and Liberty Unyielding. He’s also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter, who can often be found honing his skills at the range. To read more of his reports — Click Here Now.

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It’s human nature in the aftermath of any tragedy to want to do something — anything — to prevent a recurrence. The Saturday mass shootings in El Paso and Dayton are no exception.
red flag law, guns, shooting, dayton, el paso
Wednesday, 07 August 2019 03:04 PM
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