Why Red Flag laws are so bad

The ‘Red Flags’ Surrounding Red Flag Laws
Jeff Carlson
contributor
Comments August 8, 2019 Updated: August 15, 2019
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Commentary

An the wake of two recent mass shootings, calls for the enactment of red flag laws have risen
exponentially. It’s perfectly understandable that so many want to do something, anything, to help
prevent future tragedies such as the ones that took place in El Paso and Dayton.
But the blind enactment of red flag laws isn’t the appropriate response.
Red flag laws are effectively prevention laws that allow law enforcement and family members to
petition a court to have an individual’s firearms temporarily confiscated if the person is believed to
pose a danger to themselves or others.
The involuntary removal of weapons, usually done without notice, is generally for a set period of time
—typically several days or weeks—until a more formal hearing can be held. At the formal hearing, the
judge might rule that the ban is valid and extend the confiscation for a longer period of time, sometimes
as long as a year. Or the judge might rule against the temporary order and allow the weapons to be
returned to the owner.
In the event of a valid ruling, the gun owner may be forced to go to court multiple times in order to
have his constitutional rights restored.
Inverting Due Process
One of the troubling issues behind such laws is the intent to “catch” people before they actually commit
a crime—based on a presumption that the individual “may” commit that crime in the future. In essence,
red flag laws are “pre-crime” laws, which is why they are also known as prevention laws.
And they invert our nation’s due process of “innocent until proven guilty” into something resembling
“potentially guilty until proven innocent.” The intent behind red flag laws runs completely counter to
the underpinnings of our legal system, which has been designed to impose punitive measures after
illegal conduct has occurred, not in anticipation of it.
The idea that someone “might” be a danger, although tempting in the wake of these tragic shootings,
doesn’t provide legal sufficiency to strip away an individual’s constitutional rights without the benefit
of due process. Also worth asking is what, exactly, constitutes a red flag? And who gets to make that
determination?
The issue of determination is a somewhat crucial question, as existing red flag laws are structured in a
manner that incentivize seizure. A law enforcement officer or a presiding judge is unlikely to face any
consequence for taking weapons away from someone who isn’t really a threat. But the potential public
backlash from refusing to do so if something tragic was to happen would be fierce. There is an obvious
inducement to err on the side of caution—even if it means a violation of that individual’s Constitutional
rights.
Several state red flag laws, such as those in Oregon, allow for the temporary confiscation of weapons
based solely on a brief statement from a third party who must be a law enforcement officer, family
member, or household member. The affected individual isn’t given advance notice, nor is the person
allowed to defend him or herself ahead of the confiscation. There is also no requirement that any illegal
behavior must have occurred.
Some states allow for court petitions from parties outside of immediate family or household members
and typically include mental health professionals. Hawaii goes even further, allowing for petitions to be
made by medical professionals, educators, and coworkers.
Involuntary Commitment
In most cases, red flag laws have been invoked when the individual was deemed to be either a danger
to themselves or to their immediate family and not because they were deemed to be posing a threat to a
larger section of the populace. And there are several studies that indicate these methods have reduced
suicide rates.
But this raises the question of why, if a person represents a level of danger great enough to warrant the
seizure of his weapons, is he allowed to remain active in society without treatment? If an individual is
deemed to be so dangerous as to require the confiscation of his weapons, surely professional treatment
and some sort of custodial setting should be required.
A more useful hurdle might be a judicial determination that the individual meets the state standard for
involuntary commitment and that remedy is the one that is followed. At a minimum, some mental
health treatment should be requisite—and only after a due process judicial determination.
National Level
As it now stands, at least 17 states plus the District of Columbia have already enacted variants of red
flag laws—known as Extreme Risk Protection Orders (ERPO). Most of these laws were enacted
following the 2018 Parkland, Florida, shooting, although Connecticut, the first state to pass a red flag
law, did so in 1999. Notably, Connecticut’s red flag laws didn’t prevent the 2012 Sandy Hook shooting
tragedy from occurring.
At the national level, Sen. Marco Rubio (R-Fla.) introduced the Extreme Risk Protection Order and
Violence Prevention Act. It would allow a court to issue an ERPO following the successful court
petition by a family member or law enforcement officer that would require the surrender of the targeted
person’s firearms. It would also prevent the individual from purchasing guns while the court order
stands.
The act also requires that the issuance of the ERPO be reported to the “appropriate federal, state, and
tribal databases.” Who would have access to these databases hasn’t yet been made clear, nor is it known
if the listing would be permanent.
Following the El Paso and Dayton shootings, Sens. Lindsey Graham (R-S.C.) and Richard Blumenthal
(D-Conn.) announced a bill on Aug. 5 that would create a federal grant program to assist states in
adopting red flag laws. According to Graham, “Many of these shootings involved individuals who
showed signs of violent behavior that are either ignored or not followed up. State Red Flag laws will
provide the tools for law enforcement to do something about many of these situations before it’s too
late.”
Constitutional Violations
Judge Andrew Napolitano, who was asked for his opinion of the Graham-Blumenthal legislation on
Fox News, provided a direct and blunt response, noting, “Honest, decent, law-abiding people should
not lose their rights because some judge thinks they might do something in the future. That’s the Soviet
Union model, not the American.”
Congress has long had a bad habit of enacting poorly written, responsive laws, and there is generally an
inclination on the part of government to overreach. When enacted legislation and regulation fails, the
nature of government is to follow up with additional laws and regulations. If the government is allowed
to seize guns based on the possibility of a future crime, how long before the seizure is of one’s liberty?
Laws that deter future crimes are obviously a positive step. But laws that punish a potential future
crime are not. It’s for this reason, along with a lack of due process, that many red flag laws are viewed
as unconstitutional. Depending on how the law is written, there may be violations of several different
constitutional amendments.
The Fifth and Fourteenth Amendments of our Constitution mandate that no citizen shall “be deprived
of life, liberty, or property, without due process of law.” When individuals have their firearms
confiscated in advance of a judicial hearing, both amendments are violated, and the individual’s Second
Amendment right has been effectively converted into a privilege.
Red flag laws may violate other portions of our Constitution as well—such as the right to an attorney
(Sixth Amendment) and unreasonable searches and seizures (Fourth Amendment).
NRA Requirements
The NRA has written repeatedly on emergency risk protection orders (ERPOs) and has listed a series of
requirements they believe should be present in any ERPO legislation in order to protect individual
rights:
The process should include criminal penalties for those who bring false or frivolous charges.
An order should only be granted when a judge makes the determination, by clear and convincing
evidence, that the person poses a significant risk of danger to themselves or others.
The process should require the judge to make a determination of whether the person meets the state
standard for involuntary commitment. Where the standard for involuntary commitment is met, this
should be the course of action taken.
If an ERPO is granted, the person should receive community-based mental health treatment as a
condition of the ERPO.
Any ex parte proceeding should include admitting the individual for treatment.
A person’s Second Amendment rights should only be temporarily deprived after a hearing before a
judge, in which the person has notice of the hearing and is given an opportunity to offer evidence on his
or her behalf.
There should be a mechanism in place for the return of firearms upon termination of an ERPO, when a
person is ordered to relinquish their firearms as a condition of the order.
The ERPO process should allow an individual to challenge or terminate the order, with full due process
protections in place.
The process should allow firearms to be retained by law-abiding third parties, local law enforcement, or
a federally licensed firearms dealer when an individual is ordered to relinquish such firearms as a
condition of the ERPO. The individual must also have the ability to sell his or her firearms in a
reasonable time without violating the order.
Balanced Response
The recent tragedies are horrific and it’s understandable that our society would require some sort of
response. But this shouldn’t come at the expense of our civil liberties and in a manner that violates our
constitutional rights. Nor should the underlying issue of mental health and requisite care be overlooked.
As Congress and the states continue their debate, these qualifying measures listed above should receive
serious discussion and inclusion in any pending legislation.
Jeff Carlson is a regular contributor to The Epoch Times. He is a CFA Charterholder and worked for
20 years as an analyst and portfolio manager in the high-yield bond market. He also runs the website
TheMarketsWork.com and can be followed on Twitter @themarketswork.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

OMGC Range Introduction

ORCHARD MESA GUN CLUB MEMBERS RANGE INTRODUCTION

The Orchard Mesa Gun Club was formed in 1949 as a 100% National Rifle Association Club, and was registered as a Colorado nonprofit corporation the same year. The original 18 acre property was purchased from T.R. Ely in 1953. The OMGC has acquired additional property over the years to the north, south and east of the original range. All ranges are oriented so firing is to the east and all ranges are parallel with each other and protected with earth berms. In general there are two range areas, the original or North Ranges and the new or South Ranges. On the North Ranges there is a covered concrete firing line with shooting benches located under cover. Earth berms are located down range to contain bullets fired at 50, 100, 200, and 300 yards. There are several steel targets mounted in front of the 300 yard berm. These are the only metal targets allowed on Club property. To the north of the covered firing line is a second range for rimfire rifle shooting only. The back of this range allows for firing to about 50 yards. These two ranges share a common firing line and there are rules in place for the concurrent use of both ranges contained elsewhere in this Handbook. The South Ranges have three roughly parallel ranges with earth berms that allow firing to be safely done with different firing lines as long as there is protection for each firing line by a berm. One is longer than the others, and pistols are permitted on all three ranges. Rifle shooters can use the northern most and longest range if pistol shooters are not using it.

When the Club was formed the area was very rural in nature. Over the years this has changed. The OMGC is now surrounded by private property to the north, west, and south. To the east is a gravel mining operation on BLM land. This situation requires the Club to take all necessary measures and to do due diligence to ensure no expended rounds leave Club property. It is the responsibility of all OMGC Members to conduct their shooting in such a way that all fired rounds contact an earthen berm after passing thru the target. Any bullet leaving the Club property has the potential to damage property and endangers lives and could result in enormous cost to the Club, and possible closure of the Ranges. All Members are responsible for the conduct of their guests, and to report any violations observed to a Club Officer or Board of Directors member. Failure to follow these rules can result in suspension and or expulsion from the OMGC. Only paper targets mounted on wooden target frames and positioned so bullets impact on an earthen berm after passing thru the target are acceptable, with the exception of the steel gongs located at the 300 yard line. No cans, bottles or rocks are to be used as targets. Targets should be of sufficient height to ensure a berm is there to contain the shot, and not strike the ground and possibly leave Club property. Match directors are responsible for insuring that all shooters at the match adhere to this rule.

Both the North and South Ranges have toilet facilities. There is shelter from the elements on all ranges, but not all firing lines are covered. The Club House is located at the south end of the covered firing line of the North Range. Target frames are kept in the small target shed for the use of all club members, and should be returned to the target shed when finished with. There is a Target Shed behind the covered firing line on the North Range to the west that contains targets used by the various shooting matches and only club officers and match directors have key’s to this Shed. All vehicles are required to use grave roads whenever possible to move about the property. Other areas can be nearly impassable if wet or covered in snow. Do not attempt to drive on muddy areas as this makes for ruts and detracts from the appearance of the Club. There is a gate that separates the North and South Ranges with a flag pole to the east of the gate. A flag is there and is to be hoisted on the flag pole when the South Ranges are in use to inform shooters using the North Ranges of that. When the last shooter leaves the South Ranges they are responsible for lowering the flag and storing it The main gate to the Club Ranges is off State Road 141, also known as 32 Road onto Springfield Road, and then a right turn on Browning Road to the main gate. The main gate and, Club House are locked with a combination lock. The combination is changed periodically and all active club members are informed thru the Club’s News Letter. Club members should never disclose the combination to non members or members who have become inactive. New members will be given the combination to the locks and their badge following the completion of their membership processing. The last person leaving the range each day is responsible for ensuring the gates and Range House are all locked. In the event a lock fails the outside gate should be locked with one of the working locks from the Club House and a Club Officer informed so the defective lock can be repaired or replaced. Members may lock the outside or main gate when they arrive or leave it open if they choose. Anyone coming onto Club property should be treated as a guest and encouraged to join the Club but may not shoot unless accompanied by a Club member.

Membership in the Orchard Mesa Gun Club is a privilege open to any responsible adult who completes an application, is a member of the NRA or joins the NRA at the time they join the Club. Membership is for 12 months and members renew their membership in the same month they joined the Club. The Club Secretary will mail the Membership Renewal to the address of record in the Club’s Data Base around the start of each month. The member has the rest of that month and the two following months to renew, and then the member becomes inactive and can no longer use Club facilities. When an inactive member renews they will be reinstated to active status. If the member fails to renew when the month they joined comes around the next year they will be dropped from the Data Base and will be required to rejoin the OMGC. Active members are not to give padlock combinations to inactive members, or bring them as guests to the range. A member in good standing may bring 1 guest to the range to shoot and other guests to watch. The shooting guest may rotate with other guests but only 1 guest may shoot at any given time. Guests who live in the area should be encouraged to join the Club, and members are not to bring one guest at frequent intervals instead of joining the Club. Guests must always be accompanied by a member, and may never be given the combination to the gates. Immediate family members may accompany the member and shoot with the member. Family members who frequently accompany the member should become Associate Members, but must still be accompanied by a member.

Safety is a major concern for all members. Unsafe firearms handling presents a grave danger to all persons using the ranges. Complete safety requirements for all ranges are beyond the scope of this document, but the most important safety aspects are as follows:

• Never aim a firearm at anything you do not wish to shoot.
  
  Never put your finger on the trigger until you are sure of your target.
  
  All firearms should be considered loaded.
  
  Safeties can fail.
  
  Never go forward of the firing line until you are sure it is safe to do so.

The procedure for making the firing line safe is for the person who wishes to go down range to request that all shooters “Make the lie safe” Each person responsible for a firearm will acknowledge that the line is safe and make his firearm safe. A safe firearm has its action open, the chamber empty or a handgun may be securely holstered. A rifle may be left on the bench, cased, or placed in one of the rifle racks. Only then can a person say they are “safe”. Once the firing line has been declared safe no one may touch a gun for any reason, including cleaning it, until all shooters are again behind the firing line and all persons responsible for a firearm have declared, “The line is hot.” Only then may shooters touch their firearms and resume shooting. Persons using the rimfire rifle pit may go down range using the same system among themselves without making the firing line on the covered North Range safe. Shooters on the North covered range must also ask the pistol pit shooters to make the line safe before they go down range. All shooting is to be done to the east, using only approved targets, and all fired rounds must impact an earth berm and not leave OMGC property. All members of the Club are required to sign a statement that they know and will follow these rules and any other rules developed by the Club. They also acknowledge that they will hold their guests and fellow Club members to the same standard and will report violations to a Club Officer or Board Member.

Membership Meetings are held the third Tuesday of each month beginning at 7:30 PM. The business of the Club is conducted at these meetings and all members are encouraged to attend. An active membership is vital to ensuring the continued existence and progress of the Orchard Mesa Gun Club. It is your Club, enjoy it.

PAY PAL

Orchard Mesa Gun Club is now set up to accept your membership dues (both renewal and new members) At the top of the home page there is a tab [Dues & Donations].

Once that page opens scroll down and choose the option that suits you best. 

Remember you still MUST fill out the paper work that you have been sent or that which you have downloaded from this page.  This again MUST be mailed to our Post Office box.

Hopefully you will find that this option is better for you.

Thank you for your participation, your support of OMGC and your continued support for the shooting sports.