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“Fact Checker:” Forcible Removal of Guns Before their Owner Has a Chance to Make His Case in Court is not “Confiscat[ion] of Firearms Without Due Process”

Monday, November 7, 2022

“Fact Checker:” Forcible Removal of Guns Before their Owner Has a Chance to Make His Case in Court is not “Confiscat[ion] of Firearms Without Due Process”

It’s election time, and supposedly “independent fact-checkers” are again bending the truth to support a political agenda. This time they are contorting evidence and linguistics to insist it is “mostly false” that “red flag laws” allow the government “to confiscate your firearms without due process.”

For some time now, the NRA has been warning of the problems, fallacies, and dangers of so-called “red flag laws,” including here, here, and here.

Our basic points are simple.

First, the laws are not likely to be effective in promoting safety, because they focus solely on an allegedly dangerous person’s access to firearms, without actually preventing the person from causing harm by other means or addressing the underlying causes of dangerousness.

Second, they incorrectly assume judges can discern who – among non-prohibited people who have not been previously convicted of disqualifying crimes or subjected to disqualifying commitments or adjudications – will behave dangerously in the future.

Third, and perhaps most importantly, they intrude on fundamental liberties, including by empowering a judge or magistrate to order the seizure of a person’s lawfully-owned and constitutionally protected firearms before the person has even been given a chance to tell his or her side of the story.

The more people become aware of what red flag laws actually do, in fact, the less they support them. Recent research showed “58% of people support red flag laws when told the ‘primary purpose is to allow judges to take away a person’s gun based on a single complaint when there is a concern about that individual committing suicide.’” Yet that same researched showed when “respondents were told there are no hearings where a defendant presents their case to a judge before their gun rights are taken away and mental health experts are not involved in the process, the 58% support drops down to 30% with 47% opposing.”

It is therefore imperative for proponents of red flag laws to suppress information about how they actually work in order to gain majority support for them.

And when it comes to suppressing information of all sorts, “fact checkers” are ironically among the worst offenders.

It would be one thing if “fact checkers” merely rendered opinions that could be exposed to public scrutiny and evaluated on their own merits.

But the real purpose of a “fact check” is to allow political bias to pass as established truth, so it can be used to discredit and censor differing opinions. This is most evident when social media platforms append “fact checks” to statements they don’t want users to believe and/or use them as a pretext to downgrade the prevalence or accessibility of those statements on the platform.

Not coincidentally, with an important election looming, Politifact is trying to make sure one anti-gun governor’s support of red flag laws is whitewashed of its endorsement of heavy-handed tactics to disarm law-abiding gun owners.

The NRA has been running a radio ad in Wisconsin that states Democrat Gov. Tony Evers would “allow the government to use red-flag laws to confiscate your firearms without due process.” Last week Politifact published a “fact check” that rated this statement “mostly false.”

In their article, Politifact admitted that Evers proposed a red flag law in Wisconsin, and the article even linked to the bill’s text. Like most existing red flag regimes, that bill contemplated a two-stage process.

In the first stage, a judge or circuit court commissioner “shall issue a temporary restraining order prohibiting the respondent from possessing a firearm and ordering the respondent to surrender all of the firearms in the respondent’s possession if the judge or circuit court commissioner finds reasonable grounds that the respondent is substantially likely to injure the respondent or another person if the respondent possesses a firearm.” The bill’s language makes clear the respondent does not have to be present for this order to be issued or even to have been aware of (much less answered) the petition requesting the order. 

If the sheriff personally serves the respondent with the preliminary order, the sheriff shall “require the respondent to immediately surrender all firearms in the respondent’s possession.” The bill additionally makes clear that if service is affected by means other than personal delivery of the order by the sheriff, a search and seizure warrant may be issued if a law enforcement officer “has probable cause to believe the respondent possesses a firearm” in violation of the order.

Only after this first stage, authorizing the forcible removal of firearms from the respondent, is a hearing required to be held at which the respondent may rebut the accusations against him. The hearing is supposed to be scheduled within 14 days after issuance of the preliminary surrender/seizure order, but the time may be extended in certain circumstances.

The Politifact article basically acknowledges all of this. It even goes on to state: “The NRA has a point in that the gun owner is not involved from the beginning ….”

Nevertheless, Politifact claims the statement in the NRA’s ad is “mostly false” because it suggests “there is no judicial process at all.”

But that’s not true. The ad speaks of a lack of “due process.” It says nothing about “judicial process” or whether a judge is involved. The U.S. Supreme Court has found a number of court procedures lacking in “due process,” even though they involved some level of judicial involvement (see, for example, the 1979 case Addington v. Texas). The two things are not the same.

The Politifact article cites no NRA source for the claim that the bill Evers supported lacked “judicial process.” Instead, it cites statements Wisconsin Assembly Speaker Robin Vos made in responding to the bill Evers supported and Politifact’s own prior “fact check” of Vos’ claim.

Yet there is nothing in either fact check that ties Vos’s statement about judicial involvement in the process to the NRA. Rather, Politifict is simply muddying the waters about an NRA statement by invoking the statement of someone else who was not speaking on the NRA’s behalf. That alone is strongly indicative that the Politifact article is straining to discredit the NRA.

Politifact also faults the NRA for referring to a “temporary seizure” (in their words) as “confiscation.” In fact, dictonary.com defines “confiscate” as (among other things) “to seize by or as if by authority,” exactly as the Evers-supported bill would allow.

Finally, the Politifact article claims the NRA is wrong that red flag laws violate due process because “such laws in other states have been upheld as constitutional on both Second Amendment and due process ground.” It cites only specific example, however, an appellate court case upholding Florida’s version of the “red flag” concept.

Of course, the fact that individual state courts may have upheld specific state laws against specific constitutional challenges does not resolve all questions about whether other such laws or specific applications of those laws are also constitutional. Importantly, the U.S. Supreme Court has not weighed in on any constitutional challenge to a red flag law. And given that court’s recent ruling in NYSRPA v. Bruen -- which requires gun control laws to have a historical pedigree dating back to the 18th or 19th Century to survive Second Amendment scrutiny – it is certainly questionable whether red flag laws would pass muster. Even their supporters have referred to the concept as “new” and “innovative.” 

Furthermore, the NRA is not the only organization that has raised concerns about whether “red flag laws” comport with the U.S. Constitution. Similar arguments have been made, for example, by the President of the New York State Bar Association and even a state affiliate of the American Civil Liberties Union.

In summary, Politifact uses a strawman argument, linguistic cherry-picking, and exaggerated claims about judicial precedent to makes its case against the NRA. We therefore rate its rating “mostly political” and “hardly factual.”

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