Judge Andrew Napolitano, Fox News senior legal analyst, thinks “red flag” laws are a bad idea. (Screen snip, YouTube, Fox News.)
In an essay published Wednesday in the Washington Times and on Thursday by Fox News, that cable network’s senior legal analyst, Judge Andrew Napolitano, wrote strongly against the concept of so-called “red flag” laws, arguing that they do not pass the constitutional smell test.
“The concept of a ‘red flag’ law — which permits the confiscation of lawfully owned weapons from a person because of what the person might do — violates both the presumption of innocence and the due process requirement of proof of criminal behavior before liberty can be infringed,” Napolitano wrote.
Napolitano, who served as a Superior Court judge in New Jersey for eight years (1987-95) has written nine books on legal and political subjects, according to a Wikipedia biography. He does not soft-pedal his opinions.
The 941-word commentary raises issues that have been kicked around social media by gun rights activists over the past couple of weeks since the two high-profile shootings in El Paso and Dayton, and even before that in the wake of the Garlic Festival shooting in California the previous weekend. In the aftermath of those incidents, Capitol Hill anti-gunners and the gun prohibition lobby have been pressing their demands for additional restrictions on gun owners, including so-called “universal background checks”—despite the fact that shooters in all three cases bought their guns legally—and the “red flag” laws, commonly called “Extreme Risk Protection Orders” (ERPOs).
After taking the reader through a history of firearms use during the American Revolution, Napolitano (who is not related to the former Arizona governor) observed, “Fast-forward to today, and we see the widespread and decidedly un-American reaction to the tragedies of El Paso and Dayton. Both mass murders were animated by hatred and planned by madness. But because both were carried out using weapons that look like those issued by the military, Democrats have called for the outright confiscation of these weapons.
“Where is the constitutional authority for that? In a word: nowhere,” says the judge.
“The government’s job is to preserve personal liberty,” he writes. “Does it do its job when it weakens personal liberty instead? Stated differently, how does confiscating weapons from the law-abiding conceivably reduce the ability of madmen to get those weapons? When did madmen begin obeying gun laws?”
Second Amendment activists say “red flag” laws appear to lack one very important thing: Due Process, which they argue causes a constitutional collision with the Fourth and Fourteenth amendments.
While nobody wishes to see firearms in the hands of a crazy person, the fear is that any law-abiding gun owner whose sibling, ex-significant other, estranged spouse, neighbor or co-worker with a grudge might file a complaint that leads to a disarmament order.
Judge Napolitano reminds readers that under this country’s legal system, a person is to be presumed innocent until proven guilty in a court of law. Red flag laws seem to turn that concept on its head by seizing someone’s firearms and then allowing a hearing for the affected person to prove they’re not a danger to themselves or others.
Says Napolitano: “The presumption of innocence puts the burden for proving a case on the government. Because the case to be proven — might the gun owner be dangerous? — if proven, will result in the loss of a fundamental liberty, the presumption of innocence also mandates that the case be proven beyond a reasonable doubt.”
Napolitano’s opinion, however, is just that…an opinion. But it raises some interesting questions that, so far, proponents have been unable to satisfactorily answer.