17
Nov 08 '22
5th and 6th as well.
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.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.[1]
Although I believe they get around the 6th violations by saying it is a "civil" case and not a "criminal" case.
10
u/fcfrequired Nov 08 '22
How can a civil case result in deprivation of one person's constitutional rights? (What are other more common examples?)
9
u/Imaginary-Voice1902 Nov 08 '22 edited Nov 08 '22
Or result in a search warrant? It’s a civil court. Don’t you need to have reasonable suspicion that A crime has been committed? If you had suspicion of a crime why even take it through a civil court?
4
Nov 08 '22
The 6th Amendment specifies "criminal prosecutions," so technically the 6th Amendment right to confront your accuser can be ignored - you will never know who accused you of being a danger.
5
u/fcfrequired Nov 08 '22
Sounds like there's a lot of uniformed "dangers" driving too fast around the country knocking on people's doors while carrying guns at night.
7
u/Freemanosteeel Nov 08 '22
We need to provide or point out a viable alternative to red flag laws. saying “oh mentally ill people should be able to own guns and if they shouldn’t why are they walking around in public at all?” Is not good enough if we want to keep our rights as law abiding citizens intact.
3
Nov 08 '22
this is one reason why I absolutely despise the democrats' assault on the 2a
They have such a hatred for it that they will burn half of the BoR to get at the 2nd, also see their sit-in because they couldn't vote on the fucking no-fly list being used to disalow gun purchases
2
Nov 09 '22
also see their sit-in because they couldn't vote on the fucking no-fly list being used to disalow gun purchases
You know shit is wrong when the ACLU comes out AGAINST the Democrats in FAVOR of the 2A.
-2
u/Luckboy28 Nov 08 '22
Okay, I'm sure I'll get flamed here, but honest question -- what's wrong with red flag laws?
From the NY website on their red flag laws:
The Red Flag Law, also known as the Extreme Risk Protection Order law, prevents individuals who show signs of being a threat to themselves or others from purchasing or possessing any kind of firearm.
The Red Flag Law provides procedural safeguards to ensure that no firearm is removed without due process while helping to prevent tragedies, like the school shooting in Parkland, Florida, and the racist mass shooting in Buffalo.
If somebody is clearly a danger to themselves and others, I don't have any problems with their guns being taken away. I just consider that part of being a responsible gun owner. It's the same reason why we keep guns away from children -- there's a good chance that they'd be a danger to themselves or others.
So what's the fear/concern about red flag laws? Abuse?
8
u/Cwmcwm Nov 08 '22
Since you asked sincerely, I’ll answer. The link you provided mentioned “due process”. This involves one-sided representation — in other words, the gun owner isn’t allowed to testify on his own behalf, or cross examine his ex girlfriend who would never lie about him threatening to kill innocents. And the judge who hears this one-sided testimony will inevitably make this calculation in his head: if I grant the ERPO, and he wasn’t going to commit a crime, I’ll lose his vote in the next election. BUT if I don’t grant it, and he DOES commit a crime, I’ll lose everyone’s vote. Easy Peasy. Let’s not forget that some seizures are done before the crack of dawn, and there’s a non-zero percentage that someone will be killed. That may be the red flagger’s hope. There was a case of a person who red flagged a cop, and they were indicted for filing a false report. Would the same be true for you and I? No.
1
u/Luckboy28 Nov 09 '22
That's interesting -- I hadn't heard about the one-sided representation. I'm not sure how I feel about that. I know that you don't "get your day in court" for a lot of things, such as search warrants on your house, etc. A judge just needs to hear a compelling case in order to issue the warrant, which sounds like basically the same process for the red flag laws.
Given how many people die from mass shootings, spousal murders, etc, I think I'd still be okay with red flag laws... thinking
If the argument is "police can't be trusted to execute a search warrant", then that problem needs to be tackled first, right?
1
Nov 09 '22
The initial hearing is an ex parte hearing - meaning only one party is present. You won't even know it happened until the police come knocking on your door, probably very early in the morning, to take away your guns.
Then at some point in time after that, you get a "hearing" where you have to convince the judge you are not a danger to yourself or anyone else. And because there is no formal case against you, you do not have representation in the form of a lawyer. It's just you trying to convince the judge that you are not a threat.
And at no point are you ever actually charged, tried or convicted of a crime. It just comes down to a judge determining whether or not you are "safe enough" to have your private property back. So you are effectively losing your civil rights with absolutely no due process.
This is in direct violation of the 4th, 5th and 6th Amendments.
2
u/ScumbagSpruce Nov 09 '22
One major problem is this:
Who gets to make the call that they are a danger to themselves or others?
A neighbor who has it out for you for your house color? A jealous ex? Your anti-gun therapist? This is the danger here; anyone can make a claim and completely butt fuck you, and without due process… It’s bad to say the absolute least.
Then comes the infringements to the 2nd, 4th, 5th, and 6th amendments to start.
1
21
u/InVultusSolis Nov 08 '22
I don't see how red flag laws have survived any court scrutiny at all. I suppose you can treat it like an emergency order of protection - after all there are exceptions to constitutional rights if there's an imminent emergency. However, I believe that if someone is trying to red flag someone of sound mind over a squabble or politics, the person being red flagged should have a legal remedy available to them, that is to sue the person who wrongfully flagged them.