Citing a journalistic organization (Poynter) that's eager to see Congress enact laws that would allow authorities to take guns from gun owners who are accused of being a threat either to themselves or others, Harsanyi invites us to...
...imagine a law that empowered a court to temporarily nullify the free speech rights of journalists who are accused by a third party of being potentially dangerous. Let’s imagine that the nullification could be enforced before the journalist even had a chance to respond to any of the allegations leveled against them.One difficulty with Red Flag laws, which I think most people support in principle, is the matter of codifying the sort of accusations against a gun owner that'll be required to justify taking a person's firearms. Another is assessing the credibility of the person making the accusation that a gun owner is a threat.
Would Poynter argue that the proper standard of due process was met? Because that’s what numerous red flag laws allow.
Let’s then imagine that this law demands the journalist prove their innocence, rather than the state prove their guilt, before reinstating First Amendment rights. And until the journalist can offer a compelling enough argument to convince a judge that they would not commit a crime in the future, the state would continue to strip them of their rights.
Would Poynter argue that such a law lacked proper due process? (Considering journalism’s embrace of censorship, perhaps not.)
Let’s imagine now that the law also allowed the free speech rights of journalists to be canceled, not over a pre-crime, but because of “overblown political rhetoric” — as the ACLU, hardly the NRA, warned about Rhode Island’s red flag law.
Does Poynter believe people who are offended by, say, social media posts should be able to petition a judge to shut down the rights of individuals? Does that law meet the proper standard of due process? (Again, these days, I’d be nervous to hear the answer.)
Or let’s imagine that the law also permits cops to show up at the home of the journalist, search it, and demand they hand over property, without offering any evidence that they committed, or ever planned to commit, a crime.
Do laws that allow the authorities to circumvent normal evidentiary standards and procedures to help in investigations meet Poynter’s acceptable standard of due process? Because red flag laws allow for that kind of abuse.
Whether it’s the First or Second Amendment, the underlying due process arguments remain the same. It’s one thing — an authoritarian thing, for sure — to argue that some of our rights are so dangerous that we should now ignore fundamental Constitutional protections, but it’s another thing to claim that even pointing out this reality is “misinformation.”
Should one's constitutional right to own a firearm be abridged on allegations from a disgruntled ex-spouse or neighbor?
Consider what's called the "boyfriend loophole."
Currently, domestic abusers are barred by federal law from owning guns if they were married to, lived with, or had a child with their victim, but what about someone who abuses his girlfriend but doesn’t live with her?
The bipartisan group of senators attempting to craft a red flag bill may be struggling with how to define the scope of a relationship such that domestic violence committed within its parameters is grounds for losing one’s Second Amendments.
Should the “boyfriend loophole” apply only to romantic relationships? If so, how many dates are needed before we should worry about violence in the aftermath of a break-up?
How much credence should authorities give to a girlfriend's allegations of abuse that have not yet been proven in court?
These are all difficult questions and any legislation that fails to explicitly answer them bears considerable potential for abuse and should be rejected.
