Federal Red Flags Laws ARE Mass Gun Confiscation
On the Inevitable Use of Tyrannical Tools
Follow me on Twitter: @FromKulak
Disclaimer: This piece is written in reaction to legislation which as of writing has not been passed and is still being negotiated, debated, voted upon etc. It will likely change multiple times passing back and forth between the house and senate, and I don’t know which form the final legislation will take. I may not be up to date with the latest form the bill has taken by the time I get this out and you read it.
As of writing it looks like the House approved “Red Flag” Bill will pass the senate with the support of ten senate Republicans who sided with the Democrats, and the tacit support of Senate Majority leader Mitch McConnell, who could whip the vote and threaten to withhold support for for their preferred pork barrel spending… but isn’t and is merely not voting this way himself because he he represents Kentucky and doesn’t want to be primary’ed.
I’ve seen some confusion around the legislation on twitter, so I want to make it clear: This legislation not only provides grants and funding to states to pass their own red flag laws, as of writing it ALSO creates federal red flag laws that will allow federal law enforcement to go to a federal judge and get an emergency petition against anyone in the country. People in Texas, Wyoming, New Hampshire, Arkansas, Connecticut, Oregon, and Alaska, will have federal agents enforcing federal Red Flag takings against them, irrespective of their state’s individual stances on red flag laws. And the Congressional Budget Office is currently projecting 10,000 such enforcements annually, should the law pass.
But what are Red Flag enforcements? What are emergency petitions? Extreme risk protection orders?
Well this little infographic has been making the rounds on reddit:
this has been parodied to death, with much being made of how this forces potentially lethal police interactions:
And from errantAurora showing even a lot of left dissidents, and minorities are concerned since their dissent and communities are so often pathologized:
and of course Gun owners of America have made their parody version:
While I like all of these and ussually think GOA is strongly on point (way better than the NRA on just about everything) i think this parody misses the point.
It’s true the legislation is rank with the possibility for politicized application and abuse, and that you can’t defend yourself in court or present counter-evidence to a emergency petition since its an Ex-Parte hearing…
But what Defense or Counter evidence would even be possible!?
If you are accused of a crime you can present evidence you didn’t do it, or you can question the evidence presented, to show the case that you did it is weak or doesn’t meet an evidentiary standard…
But the hell can you do when you’re not even being accused of a crime? When you’re being accused of being “Cryptic” in your public statements… First Amendment protected speech.
The fact these are happening at secret hearings you aren’t even privy too and can’t present counter evidence in is entirely secondary to the fact that you’re losing a constitutional right at a hearing where you are not even being accused of a crime, merely of exercising another constitutional right.
Defenders of red flag laws conflate the reason for enforcement with domestic abuse, or terroristic threats, but there are already laws on the book allowing guns to be taken in the case of domestic abuse charges or charges of making threats… if the police are called over domestic abuse or you threaten to shoot up your school you will be charged and lose your guns, even before your trial as a condition of bail. Similarly if the police or your loved ones are actually concerned about a mental breakdown or your mental health, there are mechanisms in place to involuntarily commit patients for up to 3 days and get them a psych eval (the results of which can be the loss of guns), these mechanisms have been heavily criticized as again a major infringement on personal liberty… but at least a Medical doctor actually assesses the persons mental health! It isn’t an Ex told a cop, who told a judge, who made a judgement, that MAYBE a person might be psychologically unwell, only to then deprive them of their rights for pottentially years on end without further follow up or an actual psychological expert (or perhaps anyone) ever actually talking to the person under question to confirm if the Ex was completely lying, or if indeed this guy needs medication… none of that happens when a red flag law is applied and an emergency risk protection order granted, you lose your guns, and then that’s the end of the legal process, if you were actually 100% sane then you have to pay out of pocket for a psych eval and sue again paying legal fees out of pocket to get your constitutionally guaranteed rights back.
There is no credible scenario where a person has actually committed criminal activity, it can be proven, and merely charging them in accordance with the laws already on the books wouldn’t result in the loss of their guns (you know assuming the case didn’t fall apart under cross examination). Rather just like sympathetic Infographic says, Red Flag laws can be applied over anything, such as social media posts.
And just to be clear again: The result of a court agreeing to “temporarily” remove guns is almost entirely at the discretion of the officers enforcing them. I’ve heard of 5am no knock raids over Red Flag enforcements of the sort that killed Breonna Taylor… and indeed people have already been killed over state red flag laws.
So, What are Red Flag Laws?
Red Flag laws take away your firearms, in a search and seizure for which no probable cause has been shown you committed a crime ( and for which the original complainant does not have to make an oath or affirmation), decided at a trial without a jury, thus depriving you of a bill of rights liberty without due process of law, where you have not even been informed of the charges nor had the opportunity to confront or obtain witnesses, all to punish you for your speech which isn’t a crime.
Or put otherwise Red Flag Laws take away your Second Amendment rights, by violating your 4th, 5th, and 6th Amendment rights, as a backdoor to punish you for exercising your First Amendment rights.
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And this bill looks like its going to pass.
But it gets so, SO much worse than that.
What Fourth Amendment?
Police regularly destroy or damage homes in the course of searches
Pretty much anyone can bring a red flag complaint, the archetypal example, even used in the pro-bill infographics, is someone who sees something on social media… You know who else is on social media? Cops.
Lets imagine you’re a cop, you’re investigating someone… but dang-it you don’t have the requisite evidence to search their home like you want… what can you do?
Well with red flag laws you can just look on their social media, find a photo or post that looks “Cryptic”, and then presto you have a free run-around the fourth amendment. Sure maybe you don’t find any guns, the person has never been a gun owner, and that photo of them at a range was them having fun in Vegas like thousands of American’s every year. But you just got to search everywhere a handgun might be hidden, and what do you know it, jackpot! you Found weed or coke in their nightstand and now get to charge them with that since it was contraband found in the course of a search. Which is better since if they merely had a gun well that’d have been legal and as a cop you’d just have taken the gun, not padded your charging numbers.
Whenever Cops want to perform a search now they don’t have to get a warrant or show probable cause of the crime they think you committed, they just have to find some “Cryptic” social media post, and tell a judge that they think you have a gun.
“But wait!” I hear you say.
“Isn’t this horrifically unconstitutional? What about the supreme court?”
Why yes, the supreme court has ruled on the matter. Just last year in a rare 9-0 supreme court decision in Caniglia v. Strom they held a man’s fourth amendment rights were violated when the police searched a his house and seized his guns without his permission during a “Welfare Check”…
And not a single red flag law has been struck down as a result.
Indeed in Florida, the land of “Based Florida Man” Ron DeSantis, red flag laws have been on the books since 2018… and no efforts by that allegedly freedom loving governor have been taken to remove them. The only reaction to the SCOTUS case has been to take a look at the evidentiary standard they use for the warrant to take your guns…
You see Florida’s red flag laws have two possible mechanisms for taking your guns in an Emergency Risk Protection Order. When the judge merely issues an order to surrender firearms they use a “reasonable cause” standard, however when they issue a search warrant for the police to seize your guns they use the “probable cause” standard… since the court case was about fourth amendment due process rights around search and seizure, and they’re using the the same standard “probable cause” to issue their Emergency Risk Protection Orders. So in the mind of those legal analysts there’s no fourth amendment concern. It demands they apply a probable cause standard, and such a standard has been applied.
What the hell!?
The Warrants are issued compliant with the fourth amendment, on probable cause OF BELIEVING A CRIME HAS BEEN COMMITED. And even in that instance those warrants are issued so as to gather evidence and detain the accused so as to appear AT TRIAL. The reason warrants are issued is so as to begin due process, not conclude it. Items seized as evidence are returned as lawful property, if the charges are dropped or the accused acquitted. The accused detained is immediately given a court date to set bail so that he may post security and walk free in anticipation of a trial except in unusual circumstances. The court is even barred from taking too long in getting to said trial and letting the accused’s rights hang in limbo too long, the sixth amendment right to a “Speedy and public trial” guarantees that the court and the prosecution may not delay in getting to a trial and thus deny you your rights any longer than necessary without a hearing before a jury. At any point along these lines a court appointed (paid for out of government pockets) defense attorney could file a motion to dismiss immediately on lack of evidence if the case is weak.
Under various Red Flag laws an Emergency Risk Protection Order can be issued Ex Parte just like a warrant, your guns seized, your constitutional rights suspended… and then no subsequent hearing, you have to sue if you want to contest it. It would be as if a judge issued a warrant for your arrest, the police arrested you, and bam you’re convicted and doing 5 years, no bail hearing, no jury trial, no right to face your accusers, and if you want to contest you have to sue with money out of your own pockets (which you may not have). Except its kinda even worse… because if you were obviously provably innocent ( say you had video of yourself elsewhere that weekend) your lawyer could file an immediate motion and probably have you out of there first day… how does one prove they’re innocent when there’s no accusation?
What Could Happen?
I reached out to Angela McArdle chair of the US National Libertarian Party and she and Michael Boldin of the Tenth Amendment Center are working on model legislation for states and counties that would forbid their local police from cooperating with federal Emergency Risk Protection Orders under pain of felony conviction.
This is the same mechanism blue states and cities currently use to declare Sanctuary States or Cities on the subject of immigration enforcement, or how weed can be legal in California despite being criminalized nationally. The supreme court has ruled very consistently on federal commandeering of state assets, and has consistently ruled it can’t, so if states or local governments refuse to enforce federal edicts the only way they can be enforced is by federal agencies, institutions with nowhere near the manpower to institute national policies on their own such as immigration enforcement, or drug enforcement.
Oklahoma already has a similar piece of legislation on the books that does this and is currently being looked at by the libertarian sphere as a model for other states.
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On the darker end of the spectrum, the enforcement of gun laws are consistently limited by just the violence inherent in their enforcement. For a gun confiscation or enforcement the suspect inherently is armed, and must be treated as such… thus the danger is radically increased, both to the victim of the enforcement, and to the enforcer. In the 90s the ATF raided Ruby Ridge over a sawed off shotgun, and Waco over a search warrant regarding allegedly illegally modified firearms. Both turned infamously deadly and directly radicalized Timothy McVeigh into carrying out the Oklahoma City bombings. Following this horrendous bloodletting a markedly lighter hand was observed from federal government regarding firearms enforcement, both until the end of the federal “Assault weapons” ban in 2004… and in many respect until the present day. Its hard to name another event were children were killed over alleged auto-sears or hacksaw shortened barrels.
It is possible federal red flag laws could cause a similar turn of events… that percentage of enforcements which inevitably result in violence will spook the justice department and judges, resulting in the federal red flag laws becoming a rarely used dead letter…
But I think there’s a vastly more likely scenario:
Red Flag Laws ARE Mass Confiscation
This is a real tweet from a US congressman trying to pass the Federal Red Flag bill. We don’t even know if it will pass the senate and already they’re talking about using it, not just against political enemies, but one of the most prominent and well known political commentators in America.
Here’s another tweet from a blue checkmark talking about red flagging a senate candidate:
Eric Greitens @EricGreitens
We are sick and tired of the Republicans in Name Only surrendering to Joe Biden & the radical Left. Order your RINO Hunting Permit today! https://t.co/XLMdJnAzSK
We’ve just gone through another round of hearings related to Jan 6th and the appetite in Washington to punish dissent and political enemies has never been higher. Even as the political class tries to deny claims that these new powers will be abused and politicized, they can’t resist demonstrating their desires to do exactly that.
The congressional budget office projects 10,000 federal Red Flag enforcements a year… do you in a country of 331 million, where 10,000 represents less than a third of a percent, of a percent… 0.003% of the population, 1 in 34,000 people (less than your chances of being murdered)… do you really think federal law enforcement is going to use their very limited time with these powers to o after the merely suicidal, the merely abusive spouses, the 18 year olds who post a slightly too edgy 4chan meme… or do you think they’re going to use their time to target their political enemies? Like I don’t know… absolutely everything else the FBI and Department of justice has ever done?
If the FBI had these powers in the 60s they’d have been red flagging everyone remotely associated with the civil rights movement as potentially dangerous subversives, and probably specifically targeting the security of civil rights leaders… they’d have used these powers on the anti-war movement, and they’d have almost certainly used these powers on the first gun rights organization since the passing of the NFA (national firearms act): The Black Panthers.
We will almost certainly see these new powers used against the Jan 6th protesters… but that’s not the real concern. Ultimately even 10,000 dissidents a year is still an impotent response to crush any political movement… but there’s nothing within the text of the act that would limited them to 10,000.
The Inevitable Maximalist Use
We’ve witnessed in our lifetime the increasingly expansive readings of patriot act and FISA powers to encompass almost all details of personal communications that anyone anywhere transmits. We’ve seen these powers expand to the point where a mere 15 years after 9/11 these powers were used to spy on a major party presidential campaign. Any power the federal government gives itself will be attacked by federal lawyers until the most torturously expansive reading is the law of the land and powers even beyond the dreams of the most wild eyed signatories.
Lets imagine it is 2024… and a very controversial politician… lets say Trump, has lost again and repeats his famous line from the 2020 election. Lets say the media and DC establishment goes nuts again with fears of “Insurrection” around every corner… “Fedposting” and Radical cries of this that any every other kind of extreme “patriotism” or “sedition”, depending on your interpretation of events, flies across social media…
If the political establishment is threatened or convinces themselves through a series of delusions that they are threatened… They’ll reach for anything…
And what do you know they just gave themselves a wonderful new weapon that doesn’t even require an underlying crime.
Caniglia had his guns taken for telling his wife to “Just shoot him already”… What do you think a power hungry FBI would do to pissed off post election boomers, who post on social media “The goddamn Riggers! Why aren’t we shooting already?” Arguably the latter has more evidence to justify a Emergency petition… after all they actually have evidence the boomer posted it, Caniglia they merely had his wife’s word.
What happens when one half of the political spectrum is consistently viewed as dangerously unhinged or threatening by the other half… and federal officials agree?
This applies equally if say Trump wins and his justice department, now composed of those who have shown their loyalty by sticking with him over the past 4+ years, all of a sudden starts to interpret all those “Resistance” and “Punch Fascists” posts as credible threats. What if a Trump backed DHS starts seeking to Red Flag everyone who participated in “Insurrectionist riots” such as we saw during the George Floyd protests and Portland protests?
There are a fair number of politically active and fairly well organized left wing shooting, activist, and gun owner associations, many centered around marginalized communities such as the Pink Pistols and John Brown Gun Club. Many of these groups participate in prominent protests such as the George Floyd protests of 2020, many have been accused of being “threatening” or dangerous… Do you think Trump or Tom Cotton wouldn’t reach for red flag laws to send cops into their homes if more mass protests took off?
Currently the Congressional budget office projects 10,000 Emergency Petitions each year… there’s nothing that would limit them to that if the faction in power decided they wanted to do hundreds of thousands each year. Indeed we’ve already seen from Florida’s red flag laws… that when they run out of enforcement power or their evidence is weak, they’ll mere switch to a lower standard of evidence, and instead of sending armed men with a warrant to seize your guns they merely issue an order to turn them in.
This is of course utterly pointless since if you were going to commit a mass shooting, or suicide, or murder your ex, or carry out a terrorist plot, then you’d… you know, not turn them in, merely move up your plans. But not complying with a court order is a crime! So the state can take away your constitutional rights without you comitting a crime, and then if you refuse to facilitate their unconstitutional taking of your rights… well that’s a crime they CAN hit you with.
Courts can order arrests, fines, and freezing of assets if you fail to comply with their orders… and we’ve already seen from the Canadian experience how hungry governments are to freeze dissidents bank accounts.
Red Flag laws once in place merely need to be reached for at a moment of crisis, those in power merely need to see the possibility, and they could effect the mass supsension of a whole host of civil rights to their political enemies.
The title of this piece is “Federal Red Flags Laws ARE Mass Gun Confiscation”. That’s not hyperbole.
Once red flag laws are in place, and especially once they are in place at the federal level, the legal tools necessary for mas gun confiscation are already in place. No further law needs to be passed.
At a moment of crisis when those in power reaches for their most tyrannical tools, it will be there. And the medicalization of dissent will ensure they can twist whatever ideology their enemies hold to be “dangerous delusions”. whether that be anti-vax, anti-government conspiracism, Trans identity, pro-choice radicalism.. you name it your enemies with power will call your beliefs mental illness and will have a host of doctors and lawyers willing to avow it.
We already see this in the debates around “misinformation” that you as an equal citizen of a democracy are somehow child-like and incapable of processing certain ideas and matterials your betters would not have you exposed to, and the unpersoning of those who believe them. The rhetoric of “delusion” need only a motive and will to power to be formalized and pursued through the legal system. Just as everything became a public health matter and subject to emergency powers during the pandemic, no matter how absurd… The powers granted by emergency petitions will create the incentive to judge everything a matter of mental health and danger to one’s self and others the second the next national emergency takes place.
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Also Read my Review of Come and Take It: A Gun Printer’s Guide to thinking Free by Cody Wilson
Follow me on Twitter: @FromKulak
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Follow me on Twitter: @FromKulak
That CBO estimate appears to be based on the house law. I can't find anything in the Senate law that says federal judges can issue red flag orders.
https://www.murphy.senate.gov/imo/media/doc/bipartisan_safer_communities_act_text.pdf