Trump's Tweet Highlights Fundamental Flaws in Red Flag Laws

August 15, 2019


Matthew Hoy

On Tuesday, President Donald Trump reacted to a viral video showing CNN anchor and gun control advocate Chris Cuomo in a expletive-filled rant with a Trump supporter that culminated in Cuomo threatening to throw the man down the stairs. Trump's tweet exposes some of the fundamental problems with so-called "Red Flag Laws."

How Red Flag Laws Work

Seventeen states and the District of Columbia have passed "Red Flag Laws," also sometimes referred to as Extreme Risk Protection Orders. While who can invoke these laws varies from state to state, they all work fundamentally the same way. Someone, typically a police officer or a family member, petitions a judge that an individual who possesses firearms is a danger to himself or the community. The judge typically signs off on the order (after all, what is the downside of doing so, versus denying the order and the individual in question then kills himself or goes on a murderous rampage) and police show up at the individual's door to collect all of his weapons.

All of this happens without the opportunity for the individual to defend himself. When the individual does get the opportunity to defend himself, typically 14 days later, the burden of proof is on the individual's whose guns were taken to prove to the judge's satisfaction that they are not a danger.

This is bass ackwards from the way due process and the burden of proof typically works in this country, especially when it relates to having property confiscated by the government.

Also, in far too many of these state red flag laws, there is either little or no recourse against someone who uses the law in a frivolous or even malicious manner. Imagine if Rand Paul's neighbor had petitioned a court to remove his guns before he launched an even more serious attack on the Republican senator. It is perhaps only a matter of time before an estranged husband uses a red flag law to disarm his spouse before launching a potentially deadly assault on her.

Red Flag Laws Fundamental Problems

Trump's red flag tweet about Cuomo illustrates two of the big problems with red flag laws. First, does each side trust their political foes with the power to unilaterally confiscate firearms? Second, what is the threshold or standard for believing someone is too violent to be allowed to possess firearms?

Democrats pushing Red Flag Laws seem to have no problem with the having their guns confiscated with the Trump administration in power. This reveals either a belief that President Trump isn't the Russian-backed fascist who is subverting our democracy or an inexplicable disconnect between their view of the president and the last thing that would hold such a government in check: firearms.

Was Cuomo's threat to throw someone critical of him down the stairs evidence of a violent tendency that should prohibit the younger brother of New York's governor from possessing firearms? If not, what exactly should the standard be?

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