“Donald Trump can talk about due process. Lindsey Graham can talk about due process. David French can talk about due process. But when push comes to shove, state legislators will give it short shrift, and so will judges, because they both have strong incentives to cast the net as widely as possible, the better to catch potential mass shooters. Never mind that red flag laws are mainly used to protect people against their own suicidal impulses, or that so far there is no real evidence that they prevent homicides. The point is to do something about mass shootings, whether or not that thing works or produces benefits that outweigh its costs, which in this case consist mainly of constitutional rights unjustly lost.”
When President Donald Trump endorsed “red flag laws” on Monday, he described them as providing “rapid due process” to people accused of posing a threat to themselves or others before suspending their Second Amendment rights. Sen. Lindsey Graham (R–S.C.), who plans to introduce a bill aimed at encouraging more states to enact such laws, says they should provide “robust due process.” But as I note in my column today, due process is neither rapid nor robust under most existing red flag laws, which 17 states and the District of Columbia have enacted. There is little reason to think the situation will improve as more states rush to do something about mass shootings.
Testifying before the Senate Judiciary Committee last March, David Kopel, a gun policy expert at the Independence Institute in Denver, emphasized the importance of procedural safeguards aimed at protecting the constitutional rights of respondents in gun confiscation cases. Kopel’s recommendations include requiring that petitions be submitted only by law enforcement agencies after an independent investigation, allowing ex parte orders (which are issued without an adversarial process) only for good cause, limiting them to one week, limiting subsequent orders to six months, requiring clear and convincing evidence, providing counsel to respondents, giving them a right to cross-examine witnesses, letting them sue people who file false and malicious petitions, and giving them advance notice of confiscation orders. Here are some of the ways existing laws fall short of those criteria.
by Jacob Sullum