By Ian Underwood
Speaking on the subject of Red Flag laws, Senator Rand Paul was recently quoted as saying: I’m not opposed to sort of an emergency order for 48 hours and then you get a hearing in a court where you get the full due-process protections.
In other words, on the basis of a mere accusation, you take someone’s guns away from him, and if you made a mistake, you let him try to get them back in court.
A day or two later, he was sending out emails asking for donations to help him support the Second Amendment.
It now appears that virtually the entire Republican party, from the President on down, is lining up behind Red Flag laws, and is comfortable with the idea that (1) putting the punishment before the conviction, and (2) placing the burden of proof on the accused, are somehow consistent with ‘due process’.
The idea, I suppose, is to try to ‘get in front’ of the issue — to be seen as participating in a bipartisan effort, instead of simply resisting what is increasingly seen as a political inevitability.
In that spirit, I’d like to propose an alternative framework for these laws. Since this framework addresses the concerns of members of both major parties, we might call it the Purple Flag Law.
The first change is: When an accusation is made against a person, instead of confiscating the person’s guns, we leave the guns where they are and confiscate the person instead, escorting him to a facility where his state of mind can be evaluated.
Of course, this addresses the main concern of Democrats — if the person is separated from the guns, he can’t use the guns to do something horrible. In fact, it more directly addresses that concern, since if a person is dangerous, he doesn’t even need guns to hurt or kill a lot of people. He could use a car, or a bomb, or a bunch of gasoline and some chains, or any number of other means.
It also addresses one of the major concerns of Republicans — experience has shown that once your guns have been taken, it can be nearly impossible to get them back. And even if you do secure an order to return them, they may have been damaged (or even destroyed) during confiscation and storage.
The key idea here is that persons, unlike guns, have a right to habeas corpus.
The second change is: If it turns out that the accusation leading to the evaluation was unfounded, the accuser gets a mandatory year in prison, and is named in a mandatory civil lawsuit demanding $1 million in damages.
This addresses another major concern of Republicans — that it would otherwise be too tempting for bitter ex-spouses, disgruntled employees, political opponents, spiteful neighbors, or anyone else with an ax to grind, to point a finger at someone in order to use a Red Flag law as a form of harassment (or, in extreme cases, assassination).
A corollary to this change is: If the accusation is unfounded, the accuser begins his sentence immediately and begins paying the fine immediately. Trials can be held later to determine whether the sentence and the fine are justified. This should be acceptable to both Democrats and Republicans, since it’s consistent with the new understanding of ‘due process’ that the parties have agreed on.
Finally, note that even in cases where an accusation is well-founded, and it turns out that a person is too dangerous to let him continue to move around freely, this framework has the crucial advantage of focusing attention where it belongs — on the person, and not on the guns. Although they require violating all kinds of other constitutional provisions, Purple Flag Laws do not raise Second Amendment issues.
Of course, in a free country, we wouldn’t even be having this discussion. But to paraphrase Robert McNamara, you don’t make laws for the country you want. You make laws for the country you have. The Purple Flag Law may be the best we can do for the country we have now.