Poll: knowing the 5th amendment, Are red flag laws constitutional?

The fifth amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Its in simple english. Those arms are private property and to take them without due process is unconstitutional. Trump once infuriated me for suggesting “take guns first, due process second”. That’s exactly what red flag laws are and I hate the idea and I believe full heartedly that it is unconstitutional. This can be abused by disgruntled co-workers, someone who doesn’t like you on line, disgruntled ex… we all see how ex’s can be. This stuff should never become law and Trump can shove it up his *** for suggesting it.

What do democrats do with it? They passed it in the house. So the question arises, is it constitutional to take property without due process?

I think it’s a shame I even have to ask this. The constitution doesn’t mean a damn thing to anyone anymore.

 

If something is made illegal to possess, that is your due process.

If domestic terrorists have a nuclear weapon, are you denying their 5th amendment rights if you storm their place and take the weapon?

 

Domestic terrorists… Nuclear weapon…. I’m talking red flag laws not terrorists or nuclear weapons. I’m also not talking about illegal guns. I’m talking red flag laws.

 

Its reasonable if the individual it considered a threat to society or to themselves. Same is true (and SC agrees) about "search and seizure" in regards to DUI checkpoints.

Florida confiscates weapons apprx 6 times every day under DeSantis Red Flag laws.

 

None of that is argument for constitutionality.
DUI checkpoints we’re a 4th amendment question. Not a fifth and second. Scalia before he died also said that red flag laws were unconstitutional. Not sure if any other judges commented on them.

 

Yes, it was a constitutional challenge (searching random people who have not committed any crimes), and Supreme Court made a ruling on it and same exact argument applies to Red Flag laws

No he didn't. Scalia argued 2A has its limits aka it tolerates regulation.

This is what Scalia's clerks say his view was (Scalia died before it became an issue)
Lawyer who clerked for Justice Scalia debunks some Second Amendment mythology
https://pulse.ncpolicywatch.org/202...alia-debunks-some-second-amendment-mythology/

Shaw and Bash then go on to list several specific laws and regulations that would be constitutional under the Heller precedent, including:

• background check laws — including ones that close the so-called “Charleston loophole,”
• ‘red flag’ laws with ample due process that give “law enforcement officers more effective tools and greater resources to disarm people who have proved themselves to be violent or mentally ill,” and
• bans on particular kinds of extremely dangerous weapons — as they note, “few would claim a constitutional right to own a grenade launcher, for example.”

The bottom line conclusion from two veteran attorneys who “know the opinions in the case inside and out”: there is plenty of constitutional room for strong gun safety rules in our country. Ultimately, the debate here is a matter of politics and political will — not, as some claim, the Constitution.

 

Red flag laws refer to the temporary removal of arms. You have to allow this until the person can be evaluated. By your logic, you couldn't arrest someone until they are convicted.

The only caveat I would add is that if someone abuses the law by making false claims about someone else, they could have civil liability.

 

You’re right. He actually never touched base on red flag laws. I miss typed my search it was scalise that said that. Anyway red flag laws have never been tried in court so I do hope they will be challenged to the Supreme Court. It is my opinion that they are unconstitutional on 5th amendment grounds as well as second amendment grounds.

it is already legal in many states to take away guns from the mentally ill. They can even take them away for accidentally firing them if reported. Red flag laws will be used by disgruntled people more so than actual real issues.

 

I'm OK with "red flag laws", as long as the information used to grant them is sworn testimony before a Judge, and subject to perjury laws. Anonymous tips to 911, while they probably deserve at least some investigation, are a different story.

It should also result in a 48-72 hour minimum psychiatric hold at the local looney bin (but without prejudice for future purchases if the docs give the person a green light), and in those cases where a green light IS issued, the persons weapons should be returned posthaste.

Imagine a situation where a scorned ex-husband want's revenge, so he calls in a fake "red flag tip" on his ex-wife's new husband, who happens to be a law enforcement officer. Now, not only is he messing with their legal right to own firearms for self-protection, in this particular example, he's also messing with the guys career, pension, for potentially the rest of his life.

 

Florida (DeSantis Red Flag law): Judges granted petitions for temporary orders about 97% of the time and granted petitions for final orders 99% of the time. In many cases (up to 90% in Broward County) the respondent agrees to the order.

https://en.wikipedia.org/wiki/Red_flag_law#Florida

 

I'm not against them...
. In District of Columbia v. Heller, the Supreme Court limited the individual right to keep and bear arms to “law-abiding and responsible citizens.”

 

in Florida, the Red Flag law states that only an LEO can seek an order of protection from the courts, so it's a judicial ruling. It's not coming from crazy neighbors. A judge makes the decision. So I'm pretty sure Florida's law would withstand a court challenge. The problem is that other states may have different process that do not involve the courts that would probably be unconstitutional.

 

The link I provided listed all the States which have the law, and they all require court order. It seems Florida utilizes the law the most, and its not even close. We had several thousand seizures in FL vs few hundred in NY or California.

 

Ample due process, what is the due process? Does the person get an appeal before their guns are confiscated? What about HIPAA laws?

And I want to be able to stop mentally ill people who are a threat of danger from being able to acquire a firearm, but it has to be constitutional and not deprive someone of their constitutional right just because they were depressed or got mad about something or their estranged spouse or neighbor called the police and "reported them".

 

Due process calls for a jury of peers, not a judge that makes the decision on one sided evidence. I wouldn’t be so quick to assume that.

 

So how long do they have by law to evaluate this person and then if the evaluation is found to be unfounded as a cause for concern how long by law do they have to give the person's property back?

 

I doubt red flags will stand constitutional scrutiny. Nor, if somehow they are judged constitutional that they'll have much effect; if people don't come forward NOW to report strange-acting people what's going to compel then to enter in to a legal process to report them. We need a way to identify people wobbling on the edce of sanity and violence but I don't thing red flag laws is it.

 

Under the US system, judges have the ability to enforce all kinds of protection orders that directly impinge on rights. In family law, a judge can prevent you from seeing your kids or getting within a certain distance of your spouse or ex-spouse's home or work. As far as I know these types of protection orders are rooted in common law and I don't believe they've been challenged on their constitutionality.

 

Incorrect. Protective Orders in Family Law cases like DV and Child Custody is rooted in State Legislation (Statutory) and limited by State and Federal Constitution via the Appellate Courts (Common Law) under the 1st, 5th, and 14th Amendments of the US Constitution. For example, a Dad enjoys the right to associate with his children which is guaranteed by this amendment (First) as incorporated in Amendment 14, or which is embodied in `the concept of "liberty" as that word is used in the Due Process`Clause of`the 14th Amendment and Equal Protection Clause of the 14th Amendment. Mabra v. Schmidt, 356 F Supp 620; DC, WI (1973). Thus, the Common Law deems Parental Rights as Fundamental to Life, Liberty and the Pursuit of Happiness, and their relationship with their child requires the highest level of protection against Restrictive State Laws. As a result, almost all of the cases dealing with protective orders in family deal with these constitutional concepts in adjudicating the Legislation of Restraining Orders in States with varying standards.

There are three types of Protection Orders: 1) emergency protective orders (EPO), 2) temporary restraining orders(TPO), and 3) permanent restraining orders (PRO). The EPO and TPO relate to the Red Flag Law. The EPO usually requires a law enforcement officer to request an emergency protective order when he or she believes the victim is in imminent danger of harm by the subject of the EPO. A judge is required to be on call 24-hours a day, seven days a week to hear EPO petitions. In order for an EPO to be granted, the officer must establish that the subject of the EPO presents an immediate danger of perpetrating domestic violence or abuse or neglect of a child. If so, we move onto the TPO. This provides a victim with the same safeguards as an EPO and prohibit contact as defined in the order. TRO’s normally last 20 to 25 days after which the petitioner can seek a permanent restraining order.

The standard for Restraining Orders in a child-parent relationship is probable cause that there may be imminent harm to the child, and courts have been able to abuse the constitutional rights of a parent in certain circumstances due to Appellate Courts rejecting appeals as a matter of efficient jurisprudence (they can only take on so many cases), and the inability of parents to fund litigation against the state. It is false to believe that Judges do not have the right impinge a person's civil rights for all kinds of reasons. Child Abuse is a circumstances where states have an interest in adjudication based on best interest of the child, and can more efficiently resolve cases at the local level. Family Law is a special realm of civil law that doesn't apply to restraints on other Fundamental Rights to bear arms or free speech.

In conclusion, Red Flag Laws completely violate 2nd, 4th, 5th, and 14th amendment, and there's no carve-out for other branches of government to state statutory limitations not permitted by Constitutional Law. They cannot be limited by the States by the 10th Amendment like Familial Relationships, because the right is expressly written in the 2nd Amendment.

 

I seriously do not want my constitutional rights in the hands of some biased left wing judge and/or some progressive psychiatrist quack with an agenda. Red flag laws have the potential to become a political weapon against the citizens of the United States. It's a no-go.

 

You mostly seem to think you are disagreeing with me when really you are agreeing with me. "Probable cause" not conviction of crimes, can lead to protective orders by a judge. I'

 

I voted No. Red Flag Laws are a slippery slope that will be severely abused. Just look at the Patriot Act and the NDAA and what resulted.

 

No, there is no need for a jury, Same is true about search warrants and many other things

 

I once dated a communist. She seemed nice, but it didn't work out. I should have seen the red flags!

 

interesting