Libertarian Response to Governor Scott and Trumps Call for Red Flag Laws

Both Vermont Governor Scott and President Trump have supported red flag laws. Recently Governor Scott sent a letter to top US Senate Republicans urging them to support expanding such measures…

The Libertarian Party supports the individual right recognized by the Second Amendment to keep and bear arms, and oppose the prosecution of individuals for exercising their rights of self-defense. Private property owners should be free to establish their own conditions regarding the presence of personal defense weapons on their own property. We oppose all laws at any level of government restricting, registering, or monitoring the ownership, manufacture, or transfer of firearms or ammunition.

Red Flag laws are a punishment before a crime has been committed and we believe this to be a violation of due process. Here is the Libertarian Party Platform for more info.

Some selected viewpoints below:

Libertarian Party of Colorado Response to their state’s Red Flag Law:

You are punished before there is any evidence that you will commit a crime, before you are convicted of any crime, and before you have an opportunity to defend yourself. These laws turn the presumption of innocence on its head. According to Colorado Representative Alec Garnett, “you set in step an emergency process to intervene, and then there’s a full hearing seven days later where the petitioner and law enforcement come together and talk to the judge in a full evidentiary hearing to talk about whether that extreme risk protection order should continue.” This statement raises a lot of questions that need to be answered.

During the seven days between being served a protection order and when your case goes before a judge, are you being detained? Are the police allowed full reign of your home and property to seek evidence that you are a danger to yourself and the public? If the police are not allowed full reign of your property, how will they find any evidence against you? Who exactly is the petitioner that will stand next to law enforcement in front of the judge? If you are found innocent, do you have any legal recourse against the person that filed the order against you? What is to stop the same person from merely filing another order several months later?

This law carries with it the echoes of the “Sedition Act” of 1918, in which the government imprisoned people for using “disloyal, profane, scurrilous, or abusive language” against the government, the flag, the armed forces, or caused others to view the government in a negative light. While it seems far fetched now, the “Sedition Act” was upheld by the Supreme Court as legal. At least in these instances, there was likely written proof of the crime.

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Reason on Red Flag Laws:

This week the House Judiciary Committee approved the Extreme Risk Protection Order Act. The legislation would provide grants to encourage the passage and enforcement of “red flag” laws, which are supposed to prevent people from possessing firearms when they are deemed a threat to themselves or others. The bill’s standards for grant eligibility vividly illustrate the due process issues raised by such laws. Far from encouraging states to include robust due process protections, the bill would encourage them to slap together the weakest elements of the existing statutes…

…Since judges have strong incentives to err on the side of issuing orders, lest they be blamed when something terrible happens, the standards they are supposed to follow are vitally important. But both federal and state legislators have strong incentives to cast the net as widely as possible to stop mass shooters before they attack. Given the rarity of mass shootings, however, gun confiscation orders, even if limited to people deemed a threat to others, will mainly be applied to individuals who never would have committed such a crime. That is especially true when you consider that such orders (judging from the experience in Connecticut and Indiana, the states with the oldest red flag laws) are usually invoked against people who are deemed suicidal.

The goal should be to minimize the number of harmless people who are unjustly deprived of their constitutional rights. On that score, the existing red flag laws fall conspicuously short. A federal law that blesses all of them, as Nadler would do, or the vast majority of them, as Rubio (and perhaps Graham) would do, makes it even more unlikely that their shortcomings will be addressed.

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