Gov. Whitmer Wants “Red Flag” Laws In Michigan….

Here’s what that means.

A family member is concerned that someone represents a danger to others or themselves.  They contact law enforcement - anonymously - and swear out a complaint.  The complaint and accompanying testimony/evidence goes to a judge, who then authorizes the confiscation of the accused’s firearms if he/she believes it is merited.  The accused loses their firearms, supposedly temporarily.

Looks good, right? 

Here’s the problem:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” Fourteenth Amendment.

“No person shall be… deprived of life, liberty, or property, without due process of law,” Fifth Amendment.

First, such laws are expressly prohibited under the due process clause of the Fourteenth Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  The “red flag” law expressly abridges the right to due process and the immunity from a presumption of guilt.

Second, due process means the accused has the RIGHT to hear the accusations preferred against him, to confront his accusers, to present evidence in his own defense. BEFORE any confiscation - for ANY LENGTH OF TIME - can occur: 

“[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”  

“No person shall be… deprived of life, liberty, or property, without due process of law.

There is no provision made for due process.

Third, “red flag” laws deny the accused “…the equal protection of the laws.”

Regardless of the good the law seeks to achieve, “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed,” U.S. Supreme Court

Norton v. Shelby County, 118 U.S. 425 (1886) Norton v. Shelby County 

Argued March 24-25, 1886

Decided May 10, 1886

118 U.S. 425