“Red flag” laws have been in the news lately. So what are they? They’re measures that would allow family members, neighbors, teachers, etc., to ask for a hearing on whether a person should have their right to have a firearm revoked; the goal being to identify individuals who may be a danger to themselves or others. At first blush this sounds good, but dig a little deeper.

What if a neighbor who has a grudge against a person asks the government to conduct a hearing? Even if the allegations are unfounded, the financial and emotional toll of mounting a defense will be overwhelming. The opportunities for misuse and abuse should be concerning. And ask yourself whether attempting to take a gun from a person who’s willing to commit crimes will actually stop such a person from getting one.

The Supreme Court has ruled that the right to bear arms is in the highest category of liberty recognized in law; at the same level as the freedoms of speech, religion and the press.

Our Founding Fathers recognized the right to bear arms wasn’t bestowed by the government, it pre-existed government, and if the government can bestow a right — it can also take it away.

The Second Amendment provides the same level of protection of gun ownership to the good guys and the potentially bad. It wasn’t written to protect hunters; but to protect citizens against a tyrannical government and its agents. Read the Declaration of Independence, it lays out what they were thinking.

A person can think bad things and even talk about them, but until they actually act on them, their thinking and talk is constitutionally protected. That doesn’t mean we agree with them, or even like it — most don’t — but protecting these rights is the price of freedom.

According to retired Judge Andrew Napolitano, “red flag” laws — that permit the police or courts to seize guns from those who are deemed dangerous — are unconstitutional. He contends the presumption of innocence and the due process requirement of demonstrable fault are preconditions to any punishment or sanction.

If he’s right, what’s the basis upon which we can curtail a person’s liberty because of what might happen in the future or what the person might do? Opening the door to allow the confiscation of weapons on the premise of what might happen could be a dangerous power to give government.

But this still leaves us with issue of how do we stop gun violence. Former chair of the Democrat National Committee, Donna Brazile got it right when she said the problem is the American culture today. She urged Americans to “set a tone for our kids” so they are clear on what values we share as Americans. Those values should include protecting our liberties while being responsible citizens; not only with weapons but in what we say and think, and in how we act.

But, in any case, we should proceed cautiously if we’re to consider enacting “red flag” laws.

Bill Sargent lives in Galveston.

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(11) comments

Bill Sargent

I was a little surprised this morning when I opened the paper and saw the headline on the column I had submitted. What I submitted was “Red Flag Laws?”



As I said in the piece it was Judge Andrew Napolitano who said Red Flag Laws are unconstitutional. His reasoning is that you cannot sanction or restrict someone’s freedoms based upon something they have not yet done. Doing so, he would contend, gives government power that can abused. Whether Red Flag laws are unconstitutional is for the U.S. Supreme Court to decide. My point is that one needs to proceed carefully and that the permanent solution is to deal with the culture that causes the hate in the first place.

Bailey Jones

lol @ Andrew Napolitano. Was Jeanine Pirro not available for comment?

Carlos Ponce

Read Judge Napolitano's interview, Bailey:

Napolitano: The theory of the Constitution is we don’t punish people, we don’t take their rights away from them because of what they might do, because of what they could do but only because of what they have done. We just don’t live in a society where judges and juries predict behavior and punish it before it happens.

Ainsley Earhardt: When there is a rape list and there is kill list in high school — that is something that he did do.

Napolitano: That is a red flag and it doesn’t show up on the databases. The strictest database in the country is New Jersey’s because they combine their own plus the federal. Both of these creeps would have passed a background check applying the strictest database because this type of thing that they saw in the high school doesn’t make its way into the database.

Earhardt: Judge, this is just common sense. We all knew someone in high school you thought, gosh, they have potential to be someone great, but they are probably going to blow it. There are these people — this guy, that’s a red flag.

Napolitano: These red flags are apparent only with hindsight. No one would have said this about this guy a week ago.

Earhardt: Really? If my kid had a rape list, I would, A, get that kid a lot of help, a lot of prayer, and I would not want a gun in that child’s hand. That’s just common sense.

Napolitano: This is an adult, this is not a child, this is a child when he wrote the list. Listen, I’m certainly not defending his behavior — his behavior is reprehensible, but honest, decent, law-abiding people should not lose their rights because some judge thinks they might do something in the future. That’s the Soviet Union model, not the American.

Earhardt: This kid if he wrote a rape list at 18. I’m sure there is a lot of things he did at 19, 20, 21 that were red flags, too.

Napolitano: And they weren’t reported in the database.

Bailey Jones

I'll skip the made for TV talking head-a-thon, thanks. Is this really what people use as the basis for their opinions?

Carlos Ponce

When Judge Napolitano's statements came into the discussion I thought it best for all to know exactly what he said. Your choice not to read them is your prerogative. As to your question, "Is this really what people use as the basis for their opinions?" - People read, look and listen before passing judgement on anyone elses' opinion - at least MOST people do.[whistling]

Carlos Ponce

And this one with Martha McCallum:

Martha MacCallum: Joining me now is Judge Andrew Napolitano - FOX News senior Judicial Analyst. Judge you heard Kellyanne Conway saying that you know there it it's difficult, it's difficult to keep people from getting guns. In my mind I look at this kid who was suspended from his school for having a kill list and a rape list. Why is it when he goes to purchase a gun his school record as his young age isn't relevant to the person who is going to sell it to him?

Napolitano: Because school records are not part of the database that the FBI accesses and authorities in Ohio access.

Martha MacCallum: Well, why can't they be?

Napolitano: Well, because laws have prohibited that and kept it private. It's a great point that Kellyanne Conway makes. You and I live in the state of New Jersey. New Jersey has the most difficult and demanding background check of all 50 states. Both of those killers, the one in El Paso and the one in Dayton would have passed New Jersey's test on the basis on what is allowed to go onto that database. So when members of Congress are saying "Universal Background Checks" they don't work unless you have the right information in there because you can only access what's already in data base.

Martha MacCallum: All right, so what about.. you know because these things that go... what about mental health? Right, so you want to keep guns out of people's hands who you know obviously have a desire to kill innocent people, well who've written things about that and have expressed you know many people who know them, close to them. They kow these people are dangerous. How do we keep the guns out of their hands?

Napolitano: The President is in a very, very difficult spot. He is the most pro-Second Amendment in my memory, maybe even more so than Ronald Reagan. He's made no bones about it and I understood his statement today as one where he's still trying to protect the core right to keep and bear arms but sort of touching at the edges of it and the fringes of it for the people who don't belong there. The problem is that some of the things that he wants to do, which the Democrats have been calling for for years and even some Republicans now after the tragedy of last weekend would profoundly violate first principles and profoundly violate due process. If something can be taken away if they're.. if a right, a natural right, can be taken away on the basis of the fear of what someone might do rather than what someone did then none of our rights are safe. So I think that all these "Red Flag" laws are un-Constitutional because they are based on a fear on what you think the person might, could and may do rather than what they've done. We don't want, we don't punish on the basis of fear in America. We punish on the basis of demonstrable proven facts.

Martha MacCallum: So laws need to be changed.

Napolitano: Laws need to be changed. Listen, I'm of the belief but where's there more guns there's less crime. The WalMart which sells handguns does not permit you to carry a handgun on their premises even though Texas has an open carry law. I don't think that guy would have gotten to first base with his killing in a state like Texas if the men an women who can carry had been able to carry.

Earhardt: Thank God, in Dayton I mean, it was the most amazing, awful video but those people are running for their lives and he is running in the door and he gets taken out by an amazing response.

Napolitano: Dayton showed me some of the most amazing police work.

Emile Pope

Perhaps someone should break the news to the writer that the 'gubment traded in their flintlock muskets for aircraft carriers, tanks, ballistic submarines, missiles, and predator drones. So unless his Colt 1911 is nuclear tipped any idea of overthrowing a "tyrannical government" is highly unlikely at best...

Carlos Ponce

That's naive, Emile.

Josh Moore

Are you really that daft to think the u.s. government would use nukes on the populace? That would be an order that is not followed I can tell you that for sure. You forget that the military is all volunteer, killing people in their home towns is not what someone signs up for.

Ron Shelby

Your totally right Emile. Different age, different context.

Ron Shelby

"What if a neighbor who has a grudge against a person asks the government to conduct a hearing?" What if they do? A request for a hearing is not the same a mandating a hearing. There would clearly be an administrative layer that would eliminate repetitive harassment and duplicative reviews. Its no different than Child Protective Services calls. We also have laws against that sort of harassment by other citizens. So far I'm seeing no problem with letting authorities know that there may be a gun owner with severe social mental issues in a family, or neighborhood, who may be currently posing a risk to others. Sounds like common sense.

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