by Oleg Volk posted a comment on Facebook on Sunday evening that needs repeating. It is in reference to Red Flag Laws. Everyone who supports these ill-conceived laws and every politician who plans to vote for them needs to read it, digest it, and understand it.
A fun thought about Red Flag laws: the confiscators have no way of telling that they got all the available weapons. Even if the confiscation proceeds without gunfire, they’ve created an understandably disgruntled person with access to weapons (not limited to guns) and a kill list, starting with the finks and probably encompassing everyone who signed off on the confiscation, and those who helped carry it out. In other words, made the accusation a self-fulfilling prophecy.
Oleg points out something that I hadn’t even considered. While I consider Red Flag Laws dangerous to civil rights, to due process, and to the person whose guns are being confiscated, I failed to consider that the application of such laws might be the trigger for someone who had not previously thought of violent actions.
The law of unintended consequences indeed.
This opens the door for a renewed push for universal registration. They'll latch onto this "loophole" about not knowing about all the guns. They'll talk about "arsenals" (which would mean something like owning 3 or more guns), etc. I can see it coming. They won't ever be satisfied in their quest for "common sense" gun laws.
I have an unbalanced ex-SIL, and have a personal stake in not letting him have firearms. But, still, the laws present a 4th Amendment issue: If no crime has yet been committed, there is no probable cause. If there is no probable cause, a warrant cannot issue. So if the police show up with a Red Flag court order, and the target individual does not consent to a search, I believe that the police cannot enter the home to search for firearms. What then?
I think it would depend on how the law(s) is (are) written. Some states may give the police authority to search minus a warrant based on order from a judge. I am reminded of something Sean Sorrentino has said multiple times – if the person is so disturbed that you are taking his or her guns, why is he or she still on the streets.
Let me start by saying that the Fourth Amendment is murky territory. We have Supreme Court opinions that seem to not be well harmonized. So, in response to your statement, maybe you are right. But my point is that if we take the Fourth Amendment as written and intended, any sort of law bypassing the requirement for probable cause before issue of a search warrant or the functional equivalent is probably unconstitutional. If there has been no crime yet, then there is no probable cause, and there should be no search.
In the case of my unstable ex-SIL, there was a pretty direct solution. It was reported to the police that he owned a firearm. It was also reported that he was a user of illegal drugs. There's the probable cause. He then got picked up for DUI and possession, and our state is one that takes the time to get people on the prohibited persons list. So he can't pass a NICS check, and would probably be arrested if found to possess a firearm. Just as he should be.
Red Flag Laws in there entirety are Constitution violating and anybody who proposes one, votes in favor of one, orders one issued and participates in serveing the order is an oath breaker. I fully believe something like the following is going to happen.
A Red Flag order is taken out because a person is a public supporter of the Second Amendment. Someone in the issuing court or LEO office is aware it is being done for political reasons and gets the word out. When the LEO's arrive at 0500 they find friends and neighbors ready to give resistance. The resistance is armed but passive at the start. Hopefully the LEO's will back off. If they don't we might have our Ft. Sumter moment.
Red Flag Laws will be used in this way. You know they will. Nobody on the conservative side wants tragedies to happen. But we recognize reality as it is not as we would wish it to be. To the crazies out there the math is so simple I don't care if you do it with old math or New Math: Gun Free Zones = Target Rich Environments. The law of unintended consequences is going to demand it be obeyed and innocent, law abiding, gun owners and LEO's are going to pay that price. Not the politicians pandering to the panic in state capitols and DC.