On Friday, April 12 2019, Colorado Governor Jared Polis signed the “Extreme Risk Protection Order,” more commonly called the “Red Flag” law. Under the law, a person can petition to have someone else’s firearm(s) taken away, which a judge will review. If the judge approves, the police can seize the weapons immediately. A formal hearing is then scheduled within 14 days, in which, the gun owner must prove that they are not a risk to him/herself or others. The law is intended to prevent suicides and mass shootings, and was first proposed shortly after the Aurora theater shooting of 2012, in which 12 people were killed and 70 injured.
Colorado is the 15th state to pass a “Red Flag” law, but the measure was fiercely debated in the legislature, and passed the state Senate by only one vote. According to CBS News, Colorado ranks 21st in the nation for gun ownership, with 34.3% of citizens being gun owners. Still, Colorado has some of the loosest protections for firearm ownership and self-defense in the country, and opposition remains strong, as more than half of Colorado’s county sheriff’s departments have declared that they will either not enforce the law at all, or that they will petition to recall it.
Outcry from County Sheriffs
Immediately after the announcement that the governor had signed the bill, El Paso County Sheriff Bill Elder said he will challenge the law.
“There is a mental health crisis in this country, in this state and our communities,” he said in the statement. “The Red Flag Bill does nothing to address the underlying mental health of an individual, it only violates in my opinion, the right of a citizen to possess firearms. As I previously stated, I am exploring all available legal options and am committed to vigorously challenge the constitutionality of this law.”
The law does not take effect until 2020, and its controversy may make it difficult to enforce.
Controversy Over False Accusations
According to the lawmakers behind the bill, it is only meant to be used in “extreme” cases, but critics point out that the potential for abuse is high. Submitting a petition for someone to have their firearms taken away does not require any kind of mental health qualifications (such as being a certified psychiatrist or psychologist; in other words, it could be entered by anyone), and it gives law enforcement the power to seize property without due process or proven cause. This is possibly a violation of constitutional amendments; namely, the fourth and second.
The right to own firearms is explicitly granted in both the US constitution and the Colorado constitution; although the second amendment (as it’s written) does not specify the conditions under which a person might have their weapons taken away, it does grant gun ownership as a basic right:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Note that the amendment says “infringed,” which could be interpreted more than one way, but the amendment clearly protects gun ownership as a citizen’s right.
The fourth amendment, on the other hand, was intended to prevent unreasonable violations of privacy and property, and may prove to be the biggest hurdle to overcome for the “red flag” law. It reads as follows:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “
The amendment specifies that a warrant is required for law enforcement to be able to search or take away a citizen’s property. The “red flag” law, on the other hand, enables enable police to take weapons away based on a possible future crime. The problem is, the constitution protects US citizens against being punished for crimes they have not committed—and having your property seized is punishment. The “red flag” law also does not require there to be any proof, or probable cause, that the person in question intends to commit a crime. Thus, critics are arguing that the law, in practicum, allows law enforcement to strip someone of their rights based on someone’s interpretation of a possible future crime, and not actual evidence. The fourth amendment exists specifically to prevent government from having that kind of power over citizens of the United States.
The Philosophy of Gun Ownership
The second amendment arose from beliefs held by the founders of the United States. The underlying assumption that made it necessary, in their minds, was that human beings are naturally ambitious. Therefore, those with political power are always seeking more, and governing bodies, whose power is proportionately restricted by how much personal freedom their citizens have, will always have an inherent tendency to minimize the rights of those they govern for their own benefit. This led them to incorporate checks and balances that countered each other into the framework of every level of government, intending to prevent power from coalescing into too few people.
Without regard for the moral arguments for creating such a system, it is important to understand the context in which it was created. The “Founding Fathers” were the leaders of a rebellious state, which had just fought a bloody and violent armed insurrection against an absolute monarchy (Kingdom of Great Britain). Before the revolution even began, the colonies had undergone decades of increasing repression by Great Britain, which only worsened with each outcry and pushback from the people. Because this repression had been recently suffered, it was all the more important, in these new leaders’ minds, to ensure that these events would not repeat themselves.
The right to defend oneself and one’s own property was already common in English and much of Western European culture at the time—the historical supposition that the British attempted to confiscate colonists’ guns before the war began is a myth. What was radical, in their time, was the idea that a people should be individually sovereign from their government, and that it is their right (some even say, duty), should that government become oppressive, to overthrow them. This was the ultimate “check” that would balance the American system—distinctly from the others that existed in that time.
While a great deal has changed since the late 1700s, the right to “keep and bear arms” has endured, and since then, fiercely defended in the United States at every turn. Despite vast changes to technology and to the killing power of guns, in the end, it is the philosophy of gun ownership, and not its practical considerations, that causes it to endure.
It is possible that a time comes when guns become so powerful, the practical considerations may outweigh the philosophical. It may be that we have already reached a point at which the fundamental ideas our founding documents were written with are obsolete, or in need of expansion. It is not for us to judge; only to protect and uphold the rights we have, and in our case, protect and represent the rights of those who call on us to do so.
If the “Red Flag” law does end up being enforced in Colorado on any meaningful scale, Robinson & Henry will be here to help you defend your rights. With so much controversy already surrounding the topic, it is likely that if you find yourself deprived of your second amendment rights, you will need strong representation. Robinson & Henry’s attorneys not only understand and respect the law, we also work as a team to find the best possible legal solution for our client.
Give us a call for a 100% consultation at 303-688-0944 today.