You would have thought, from the press coverage, that gun confiscation/red flag legislation took a big step forward in last week’s Senate Judiciary Committee hearings.
Instead, the opposite is probably the case.
These bills would mostly support anti-gun states that allow police or angry relatives to strip a gun owner of his Second, Fourth, Fifth, and 14th Amendment rights by alleging he is a “danger.”
But all this would be done without the gun owner even being given the opportunity to appear in court. According to David Kopel, who is an expert in constitutional issues and firearms research, 32 percent of Gun Confiscation Orders are served erroneously.
After the “secret court” issues a gun confiscation order, the next thing that happens is a SWAT Team arrives at the gun owner’s home in the middle of the night, ready to ransack his house and, if he resists, to arrest or kill him.
Think this is fantasy? In Ferndale, Maryland, a 60-year-old gentleman was shot to death by police serving a red flag order at 5:17 in the morning.
The poor track record for these red flag laws is not dissuading politicians like Committee Chairman Lindsey Graham (R-S.C.), who, curiously, thinks his support for gun confiscation will get him the sort of attention which will fuel his Senate reelection and his 2024 presidential bid.
Given that every Democrat on the committee is anti-gun and supports red flag gun confiscation, that gives Graham 11 out of 22 votes — one vote short of the number needed to act.
Graham packed the witness panel with five people who supported Gun Confiscation Orders — and all but one supported them without much reservation.
He excluded committee Republicans from any role in selecting witnesses.
He particularly excluded criminologist John Lott, who had done the definitive study on the total ineffectiveness of the idea. And kept the list a secret from his own members until 24 hours before the hearings.
In short, the Republican from South Carolina used every underhanded trick in the book to manipulate the process in order to push his legislation forward.
Well, gun groups held rallies in South Carolina pushing primary opponents for Graham. While Graham’s staff claimed support from NRA, it turned out NRA opposed the only Gun Confiscation bill with any Republican cosponsors.
Moreover, one of the witnesses, David Kopel, while supporting the concept of gun confiscation/red flag legislation, opined that the 15 state bills that have been enacted were all unconstitutional in a variety of due process respects.
In addition, Graham’s most likely GOP supporter, former Chairman Chuck Grassley (R-Iowa), ripped the idea to pieces.
As a result, although the press reported that the laws “get the support of key senators,” the “key senators” it was referring to were Graham and anti-gun crusader Dianne Feinstein (D-Calif.) — which represented no progress at all.
In his testimony, Kopel raised five constitutional problems with virtually every state statute which would be funded by the Senate bills.
- They allow ex parte orders stripping gun owners of their constitutional rights with insufficient showings of danger;
- They fail to provide defendants with a guarantee of counsel prior to stripping them of their constitutional rights;
- They fail to allow cross-examination of accusers;
- They allow the extinction of constitutional rights by less than a “clear and convincing evidence” standard;
- They fail to allow a gun owner to turn over his guns to an FFL.
As a matter of fact, Kopel was commissioned by uniform law commissioners to help draft a model red flag/gun confiscation bill.
But the effort was opposed by the Giffords organization, which felt that their product would compete with the unconstitutional version it was pawning off on states.
And, just to make clear, none of these states is going to change its laws. So a red flag gun confiscation proposal that only funds constitutional laws will end up funding nothing.
In other words, the problems with the Senate drafts are irremediable.
Legend has it that the patriarch of the Sanson family of French executioners was so skilled in decapitation that he beheaded a man without the man even realizing it. “Shake yourself,” Sanson advised. And when the man did, his head fell to the ground.
The same is true of federal red flag/gun confiscation legislation. It died last week. It’s only waiting for its head to fall.
Michael Hammond is the legislative counsel for Gun Owners of America, a gun rights organization representing more than two million gun owners.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.