How ‘red flag’ laws violate the Bill of Rights

Diane Sieker photo

Most people now understand that “red flag” laws violate the Second Amendment of the Bill of Rights, and many Republicans, including the president, now seem willing to join Democrats, after the recent shootings in El Paso, Texas, and Denton, Texas, by left-and right wing extremists, to put dents in the Second Amendment hoping these laws “might” somehow help. But few people realize that they also virtually emasculate the Bill of Rights. What follows are the amendments “red flag” laws damage and how.

In the First Amendment, “red flag” laws encourage “police-led searches” of people’s social media, thus effectively “abridging the freedom of speech, or of the press” that is constitutionally protected. Disagreeable speech is labeled “hate” speech, thus potentially “violent” speech, thus subject to the removal of one’s weapons laws. Liberty ends when free speech, press, assembly and religion end.

The Second Amendment was specifically designed to protect the First Amendment, giving the people the ability to resist tyrannical government as the founders had – even by revolution if required. Any law, state or federal that threatens the Second Amendment as written by the Founding Fathers is unconstitutional. In New Mexico that includes requirements for firearm storage and background checks for private firearm sales. In New York, it includes banning bump stock devices. In Washington State, it is Initiative 1639, which “classifies semi-automatic rifles commonly owned for recreation and self-defense as assault weapons and prohibits young adults under the age of 21 from purchasing them.” These violate “the right of the people to keep and bear arms shall not be infringed.”

But “red flag” laws go further, potentially allowing thousands of innocent citizens to be punished only upon the fear that a crime might be committed. Secret lists of innocent people are created by family, acquaintances and potentially disgruntled ex-lovers or spouses. Any one that can approach a judge with the claim that someone is a danger to themselves or others, the sheriff is sent to disarm and confiscate their weapons. Those identified are punished without having committed a crime, and all this action enacted without a shred of evidence of unlawful behavior.

The Fourth Amendment states in part that, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” Today computers and electronic devices are our “papers” and “effects” include our weapons of self preservation. It is “unreasonable” and unconstitutional to confiscate them on the assumption that they may be used inappropriately. We might also wish to remove their automobiles, knives, hammers or medicines they might use to harm themselves or others.

It continues: “No warrants shall issue, but upon probable cause.” Until recently, “probable cause” was based upon evidence of a person having actually done something, and not upon the opinion that someone might do something. Again, there exists no crime. A warrant alone is not due process. The line “supported by oath or affirmation,” means government agents have sworn allegiance to protect and preserve the Constitution, which under “red flag” laws these agents are violating their oaths.

The Fifth Amendment states in part that “No person shall be…deprived of…property, without due process of law.” Due process is denied to thousands under “red flag” laws. No one was charged with a crime, arrested or convicted before their guns were confiscated. Without due process, everyone’s rights and properties are unsecured. It is that simple.

The Sixth Amendment lists the rights of the accused and the due process procedure which is entitled to all citizens, in “all criminal prosecutions.” Although “red flag” laws are not criminal prosecutions, they have the same effect. They accuse and administer punishment. They are “speedy” but not “public,” as constitutionally required. No one was “informed of the nature and cause of the accusation; … confronted with the witnesses against him; … (allowed) compulsory process for obtaining witnesses in his favor, and … (allowed) the assistance of counsel for his defense.” Where was the “impartial jury?” None of these four constitutionally required conditions were met before confiscation, as no crime had been committed. Those targeted by the government in “red flag” laws had no opportunity to resist confiscation.

The Seventh Amendment states that “In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” Twice the amendment mentions common law which is the underlying principles of justice that govern all human relationships – natural law – whether fully understood or not.

This amendment speaks to property exceeding $20 in value, of which all guns exceed. Although largely fallen into disuse because of the now unrealistic money requirement specified, the amendment suggests the importance of common law and jury trials of their peers, rather than judges, making the decisions regarding property. Certainly “red flag” laws exempt juries and confiscate property and guns.

Six of 10 amendments in the Bill of Rights are severely damaged by “red flag” laws with due process, the backbone of our judicial system, the greatest fatality. They are certainly the greatest threat to the Bill of Rights since the former President Barack Obama’s National Defense Authorization Act of 2012, which already effectively neutralized Amendments 4, 5, 6 and 8 of the Bill of Rights. See my article “New Bill Damages Bill of Rights and Could Target Americans for Military Detention” at

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and to applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly columns, visit