In his book “Letters to a Young Lawyer,” Alan Dershowitz wrote that “judges are political beings,” and their mission is clear: “If you want to be promoted, side against criminals, even if the Constitution requires you to rule in their favor.”
When this bias is seen in rulings against persons accused of terrible acts, not too many Americans get upset. When dealing with real criminals, Americans may be sympathetic to “when in doubt, lock ‘em up.”
This is the very same bias which judges will bring with them to the bench to rule on applications for “red flag” firearms seizures. When deciding whether to seize guns from people who are not even accused of committing a crime, the operational mantra may not rhyme, but it is likely to be “play it safe and always rule against the guy with the gun.”
In virtually all cases, red flag law applications will be heard by judges serving in the lower trial courts, who have no better insight than anyone else into whether a particular person might commit a crime. These judges are lawyers with comfortable, part-time or full-time, reasonably well-paid jobs, and status in their communities. These honors will continue for years, often along with promotions in the future — unless they make a mistake, that is.
Remember the sage advice given by the political boss played by William Frawley to the trial judge ruling on whether Santa Claus exists in Miracle on 34th Street? The judge was cautioned to weigh the political consequences of his decision before concluding that there is no Santa Claus. And the judge got the message, concluding that “Since the United States government declares this man to be Santa Claus, this court will not dispute it.”
In other words, a judge who takes away a person’s gun will almost never be blamed for trying to protect the public. But a judge who denies a seizure order could possibly be blamed for allowing the wrong person to keep their firearms.
It is easy to understand that, for a judge, no risk is far more career-enhancing than some risk, no matter how small.
What’s more, don’t expect the Constitution to protect you in one of these trial court hearings. Most lawyers will tell you that the average trial judge will never even consider the Second Amendment or firearms protections written into state constitutions. They will assume that if the state legislature wrote a law, the law is constitutional. If it isn’t, then that is an issue to be decided by a higher court, on appeal.
Judges hearing trial level cases like red flag law applications typically tell the parties before them something like “the Constitution is above my pay grade, take it upstairs on appeal.”
Just the name used to describe red flag laws — “extreme risk protection orders” — tells you all you need to know about how the judges will view them. Remember, when the order is signed to authorize the cops to break down your door, a judge often has not even had the chance to look you in the eye.
In fact, many of these orders are issued without the defendant even knowing the application to disarm him has been filed. Under such circumstances, what judge wouldn’t enter an order to “protect” the public from an “extreme risk”?
Even worse, these principles work against gun owners no matter how high the bar for proof is set. Typically, in a criminal case, a jury must find a person guilty “beyond a reasonable doubt” on each and every element of the crime.
But in the case of an “extreme risk protection order,” a person isn’t being charged with any crime. There aren’t specific elements on which proof must be offered.
Under red flag seizure orders, the statutory standard is much less than “reasonable doubt,” or even the “clear and convincing” standard sometimes used. With most of these laws, a judge need only believe it to be “more-likely-than-not” that a person poses an “unreasonable risk” to be “a danger to himself or others.”
And the gun owner doesn’t get the benefit of a jury of his peers (representing his gun-owning community), but rather his case is heard by a single judge (often representing an anti-gun elite).
What’s more, with such a low bar for the prosecution, the gun owner is forced to defend himself and his character, as opposed to a criminal trial where he has the right to remain silent and the right not to testify.
For all these reasons, trial judges have every reason to disarm people who come before them under red flag laws, with no reason to respect their Second Amendment rights, and it is likely no different when a case is heard on appeal.
Federal Circuit Court Judge Harvey Wilkinson confirms that judges rule on fear, not the law. In a 2011 decision in the case United States v. Masciandaro, Wilkinson had no reservations about revealing that his decision was based on his avoiding responsibility, rather than enforcing the Second Amendment.
He wrote: “This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.”
In a decision six years later in Kolbe v. O’Malley, Wilkinson went even further, writing that enforcing the Second Amendment’s mandates would be detrimental to democracy. (Apparently the judge forgot that the United States is a constitutional republic with fixed limits on power, not a democracy based on mob rule.)
In Wilkinson’s view, not passing Second Amendment restrictions “would deliver a body blow to democracy as we have known it since the very founding of this nation.”
In other words, Wilkinson, who lives a life of privilege, with armed U.S. Marshals to protect him, would prefer to live in a no-risk (and no freedom) society, over a free society where the Second Amendment is respected.
Of course, no thought is given by Wilkinson to the reality that firearms are, according to the government’s own Centers for Disease Control studies, used far more often to protect life than to be used criminally. His “gun free” world would more resemble the carnage in Chicago than the many areas of the country where concealed carry by citizens is commonplace.
This inescapable tendency of judges to disarm those before them means that there never will be meaningful due process under red flag laws — just the illusion of due process. In recent days, many RINOs in Congress are expressing support for red flag laws — but only if there is “robust due process.”
But how robust can we design a system to be, when our decision makers are composed almost entirely of risk-averse lawyers and lawyer-politicians who will naturally decide these cases based on their career goals, rather than the law?
Alan Dershowitz recently wrote that, in attempting to predict future crime, there are far more “false positives” than “true positives.” Not to mention the mountains of “false negatives” — the bad guys that the system never even identified.
Two of the foundation stones of our liberty are the Second Amendment and due process of law. In one sweeping move, red flag gun confiscation orders would destroy both, all under the false, misguided — and dangerous — notion that greater safety is achieved by carving up constitutional liberties.
John Velleco is the executive vice president of Gun Owners of America, a national grassroots gun rights group representing over 2 million gun owners and activists.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.