Op-ed views and opinions expressed are solely those of the author.
The United States will have been independent for 246 years this July 4th. Meanwhile, its government is busy subverting the nation’s founding principles.
Congress has passed “Red Flag” laws in reaction to the shootings in Uvalde, Texas and Buffalo, New York. Although the members took an oath to uphold the Constitution, nowhere in that Constitution are “red flag” laws legitimate on the federal, let alone state level. Law enforcement, unless a federal crime, is left to the states under the Tenth Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.
Not that “progressives” care about constitutional limitation, but now Republicans (who ought to know better) led by Texas GOP Sen. John Cornyn are suborning states into adopting Red Flag laws so they can claim to have done something, even if it’s unconstitutional.
Red Flag laws are straight out of Philip Dick’s novella, Minority Report— pre-crime, arrest before the crime is committed. The hypothesis is that such laws are legitimate because they save lives, accordingly due process may be ignored for the greater good. It is just that supposition that the Supreme Court ruled 9-0 against in Caniglia v. Strom. The Court held “the U.S. Court of Appeals for the First Circuit erred in finding that the decision to remove Caniglia’s firearms from his home without a warrant fell within a community caretaking exception, “ i.e. “warrantless searches and seizures in the home” violate the Fourth Amendment.
Dishonoring Fourth Amendment protections harkens back to the British government’s use of general warrants, or no warrant at all, to search the premises of his majesty’s subjects on suspicion that a crime may have been committed. Such behavior was one of the reasons for the Revolution. Red Flag laws are a throwback to pre-Revolutionary times as Leonard Levy showed in Origins of the Bill of Rights:
Officers or their informants merely reported that an infraction. of the law had occurred or that they had a suspicion, not that a particular person was suspected or that a particular place contained evidence of a crime; on the basis of such an assertion, a magistrate issued a warrant. Neither custom, judicial precedent, nor statutory law provided that he should interrogate the seeker of the warrant to determine the credibility of the suspicion or of his informant. The magistrate made no independent determination of his own whether a basis existed for the warrant other than the assertion that a crime had occurred or that a basis existed for some suspicion. Magistrates had an obligation to provide the warrant, rather than deny one or limit one to a particular person or place that was suspected. Probable cause in a modern sense did not exist; not even a reasonable basis for suspicion existed. Although an officer seeking a warrant more than likely would designate a particular person or place if known to him in advance, he need not do so to get a warrant.
Even the ACLU is concerned about Red Flag laws:
…the American Civil Liberties Union of Rhode Island explained that few people understand just how expansive the state’s red flag law is.
“It is worth emphasizing that while a seeming urgent need for [the law] derives from recent egregious and deadly mass shootings, [the law’s] reach goes far beyond any efforts to address such extraordinary incidents,” the authors said. Individuals who find themselves involved in these proceedings often have no clear constitutional right to counsel.
As written, a person could be subject to an extreme risk protective order (ERPO) without ever having committed, or even having threatened to commit, an act of violence with a firearm.”
James Madison, who wrote the Bill of Rights, would be dumbstruck that any American administration would unconstitutionally abridge American rights. If you want an analogy to Red Flag laws, try the Directory during the French Revolution where being denounced meant a short trip in the tumbril to the guillotine. Before seizing property, saying that property can be seized, and the owner can then go to court to prove he is innocent and should have it back is the reverse of American jurisprudence, and a Fifth Amendment violation of due process. This is the same method of operation used in the egregious asset forfeiture laws, which also need to be struck down.
Then there is the not-so-inchoate fear that Red Flag laws will be used against Americans whose opinions are not “correct.” Speak against a policy, exercising your First Amendment rights, and you may be guilty of “hate” thought, a threat to the community, and have your weapons seized without a hearing.
That has already happened in Washington State where Island County Prosecutor Greg Banks has charged Tyler Dinsmore with felony hate crime for his GAB posts quoting the Bible’s condemnation of homosexuality. Although he has never acted violently or threatened violence in his posts, Dinsmore was arrested as a threat to public safety. His weapons are in police custody. If convicted, he will be permanently prohibited from owning guns.
How would anyone who expressed an unpopular opinion fare at the hands of the vehemently anti-Trump Greg Banks? Of Banks’ attitude toward Trump supporters, reporter Jason Rantz wrote:
In October 2020, he said that we must “cleanse society” of Trump supporters’ “diseased thinking” [Rantz: Prosecutor says we must ‘cleanse society’ of Trump supporters’ ‘diseased thinking,’ by Jason Rantz, MyNorthwest.com, October 13, 2020]”
This is where leftist hate is going. Thoughtcrime is now official: pre-crime is here. Ready for the police state? The American Stasi is waiting.
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In his civilian career he worked primarily in Army Public Affairs and for the Air Force as historian to the presidential wing in the early Reagan administration and later for Air Force Legislative Liaison covering congressional hearings and assisting in preparing testimony for senior leaders.
His essays and reviews have appeared in the scholarly and popular press including Asian Affairs and the Washington Times. He is co-author, with Ali Wahab, of The Iraqi Royal Family, a Collection of Photographs Recovered from The Ruins of the Zuhur Palace, 2004.
A native New Yorker, he holds a BA with honors in history from Findlay College (Ohio) and an MA in history from The Ohio State University. He is a graduate of the US Army Command & General Staff College and was graduated with distinction US Naval War College with a MA in National Security and Strategic Studies.
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