President’s Column | Supreme Court Affirms Right To Bear Arms As Congress Tries To Weaken Due Process

by
posted on August 23, 2022
Charles L. Cotton

The NRA achieved a long-awaited, long-overdue victory in the United States Supreme Court (SCOTUS) with the decision in New York State Rifle & Pistol Association v. Bruen. The Court did much more than correctly proclaim that people’s right to self-defense does not disappear when they cross the threshold of their home. The Court also held that the Second Amendment to the U.S. Constitution requires that law-abiding citizens be allowed the tools necessary to defend themselves; i.e., they can carry self-defense firearms outside their homes—and I’m not talking about just in their yards. Justice Clarence Thomas and the majority made it clear that the leftist contention that the Constitution is a “living document that somehow morphs over time to fit a political agenda” is flat wrong. 

As important as it is, I don’t have the room to go into a lengthy discussion of the legal and constitutional significance of the full opinion. Instead, I want to focus on a topic that is part of the gun-control bill that Congress recently passed—so-called red-flag laws. It will be interesting to see how the Bruen decision and its progeny will impact such laws in the coming months.

These red-flag laws are one of the most dangerous concepts the Second Amendment has ever faced. Cries of “why didn’t someone do something” are heard after every horrific act of evil, and this is the genesis of red-flag laws. There is no uniform definition for such laws and those proposed in various states differ significantly. In my view, and I believe the SCOTUS will agree, any red-flag law that does not guarantee meaningful and upfront due process violates the U.S. Constitution, period! I say “meaningful” because rubber-stamp courts make due process illusory. So, too, does due process that comes after a citizen has suffered loss of liberty or property. Simply put, due process requires that the person targeted for a red-flag order must have an opportunity to defend himself or herself in court and with an attorney before his or her firearms are confiscated. If they can’t afford an attorney, then one must be appointed.

Even if true due process were provided in a red-flag law, the Constitution demands that a person be deprived of liberty or property only upon a finding of a then-existing fact, not a mere possibility of future conduct. Many proposed red-flag laws do not require proof of any mental illness, actual commission of a crime, any unlawful act in preparation to commit a crime of violence or even a threat of violence. 

Most states, including my home state of Texas, currently have laws that provide for the issuance of an emergency mental-health warrant to have a person evaluated by a mental-health professional. If the person is found to require mental-health treatment, then he or she can be committed to an appropriate facility for such help. This triggers both federal and state law concerning firearms possession. Critically important is the fact that the target of the warrant gets his or her day in court and can bring an attorney and experts to present a defense. 

Red-flag laws sound reasonable at first blush, but upon close evaluation of the nuts and bolts of the law, the danger is readily apparent. The Constitution absolutely does not allow a citizen to be deprived of liberty or property simply because he or she may or may not commit a crime in the future. 

It’s important to note that rejecting red-flag laws does not mean we should do nothing to prevent school shootings. Indeed, rejecting red-flag laws forces us to focus on what really works. Do what Wayne LaPierre said to do: Harden our schools! The federal government can and should provide the money necessary to do so. There are many other things that can be done within the framework of freedom. I won’t repeat everything Wayne covered in his open letter, but please read it if you haven’t already. The solutions to recent tragedies are both obvious and achievable. The only question is whether Congress has the will to do what’s right.

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