President’s Chronicle | Supreme Court upholds right to bear arms as Congress tries to weaken due process

The NRA won a long-awaited and long-awaited victory at the Supreme Court of the United States (SCOTUS) with the decision in New York State Rifles and Pistols Association vs. Bruen. The Court did more than correctly proclaim that people’s right to self-defence does not disappear when they cross the threshold of their home. The Court also ruled that the Second Amendment to the United States Constitution requires that law-abiding citizens have the tools necessary to defend themselves; that is, they can carry self-defense firearms outside their home – and I’m not just talking about their yard. Justice Clarence Thomas and the majority made it clear that the leftist assertion that the Constitution is a “living document that somehow morphs over time to fit a political agenda” is totally false.

As important as it is, I do not have space to enter into a lengthy discussion of the legal and constitutional significance of the full notice. Instead, I want to focus on a topic that is part of the gun control bill that Congress recently passed – the so-called red flag laws. It will be interesting to see how the Brown decision and its offspring will impact these laws in the months to come.

These red flag laws are one of the most dangerous concepts the Second Amendment has ever faced. Cries of “why didn’t someone do something” are heard after every horrific act of evil, and this is the genesis of the red flag laws. There is no uniform definition of these laws and those offered in various states differ widely. In my opinion, and I believe the SCOTUS will agree, any red flag law that does not guarantee meaningful and immediate due process violates the US Constitution, period! I say “meaningful” because self-registration courts make due process illusory. The same goes for due process that occurs after a citizen has suffered a loss of liberty or property. Simply put, due process requires that the person subject to a red flag order have the opportunity to defend themselves in court and with an attorney before their firearms are confiscated. If they cannot afford a lawyer, one must be appointed.

Even if true due process were provided for in a red flag statute, the Constitution requires that a person be deprived of liberty or property only upon the finding of a then-existing fact, not mere possibility of future conduct. Many proposed red flag laws do not require proof of mental illness, the actual commission of a crime, an unlawful act in preparation for the commission of a crime of violence, or even a threat of violence.

Most states, including my home state of Texas, currently have laws that provide for the issuance of an Emergency Mental Health Warrant to have a person evaluated by a mental health professional. If the person is found to be in need of mental health treatment, they may be committed to an appropriate facility for such help. This triggers both federal and state law regarding gun ownership. It is extremely important that the warrant target gets their day in court and can bring a lawyer and experts to present their defense.

Red flag laws seem reasonable on the face of it, but upon careful assessment of the cogs and bolts of the law, the danger is obvious. The Constitution absolutely does not permit a citizen to be deprived of his liberty or property simply because he may or may not commit a crime in the future.

It is important to note that rejecting red flag laws does not mean that we should do nothing to prevent school shootings. Indeed, rejecting red flag laws forces us to focus on what really works. Do what Wayne LaPierre said to do: Strengthen our schools! The federal government can and should provide the necessary funds to do this. There are many other things that can be done within freedom. I won’t repeat everything Wayne covered in his open letter, but please read it if you haven’t already. The solutions to recent tragedies are both obvious and achievable. The only question is whether Congress has the will to do the right thing.

Martin E. Berry