The Daily Caller
By Bob Barr
August 26, 201910:00 AM ET
Senate Judiciary Chairman Lindsey Graham is busy. He is openly touting the need for bipartisan legislation encouraging states to enact “red flag” gun confiscation laws, which place in the hands of local and state-level judges the near-absolute power to order confiscation of a person’s firearms. At the very same time, he talks openly of the well-known abuses by the federal Department of Justice and the super-secret Foreign Intelligence Surveillance Court (FISC) that set in motion unlawful surveillance of persons connected with the 2016 Trump campaign.
Graham’s “love-hate” perception of judges — in which they are alternatively to be trusted or mistrusted with the power to take away individual liberties otherwise protected by the Bill of Rights — is a view apparently widely held within the Congress and in the real world.
Many self-avowed Senate conservatives – Graham and Sen. Ted Cruz among them – now appear willing, if not anxious to vest lower-level judges with powers to secretly undermine individuals’ Second Amendment rights; just as the FISC judges appear to have done to the Fourth Amendment rights of Carter Paige, George Papadopoulos, and others in 2016.
Such extreme faith in state judges is misplaced; not because judges are inherently bad or dishonest, but because they are human, just as are presidents and members of Congress. When a judge is asked to place limits on an individual with the goal of preventing future acts of violence or harm committed by that individual, it is only natural for the judge to err on the side of caution. After all, what judge wants to be later blamed for not having taken such anticipatory action, when subsequent harm results (even though judges enjoy essentially absolute immunity for rendering such decisions wrongly).
The push by state government officials — and now many members of Congress — to authorize judges to issue restraining orders empowering police to seize any firearms known or suspected to be in possession of a person deemed to pose a risk of harm to themselves or others by use of a firearm, presents serious threats to constitutional guarantees otherwise enjoyed by individuals in the United States. These threats strike at the heart of the Second, Fourth, Fifth and 14th Amendments to the Constitution.
If those pressing for such extraordinary judicial and law enforcement powers seriously believe that such powers will be used carefully and with robust regard for the rights of the individuals against who such “risk prevention orders” are directed, they need seriously to consider the manner by which another class of such orders have been used in recent years — domestic violence restraining orders.
As a practical matter, granting temporary, ex parte (that is, without opportunity for the person against who an order is directed, to have any opportunity to oppose its issuance) orders in domestic violence cases has become largely routine. As noted by Dr. Tara Palmatier in a November 2017 paper, many, if not a majority of such orders are sought by spouses and domestic partners as a way to gain advantage in a planned or pending divorce action; part of what has been called the “gamesmanship of divorce.”
A typical “red flag law,” such as that enacted in Florida last year immediately following the tragic mass murder at a high school in Parkland, illustrates perfectly the constitutional and practical defects inherent in such laws. That law permits issuance of a court order empowering police to seize (at least temporarily) a person’s firearms, based on nothing more than “reasonable cause” to believe the person poses a danger to themselves or others, and that they possess a firearm. Once seized, the burden shifts entirely to the firearms owner to regain his property, by “proving by clear and convincing evidence that” he or she “does not pose a significant danger.”
Those who believe red flag laws will not become yet another part of the “gamesmanship” of civil litigation and a tool of gun control policy advocates (often assisted by “restraining order clinics” to counsel applicants how to best craft applications for restraining applications) need to better educate themselves on the constitutional and practical infirmities that accompany such measures.