Seen on the Internets: Red Flag Laws and Due Process

Are due process arguments effective against red flag laws?

From Sean on Facebook, who I’m hoping doesn’t mind the link since it’s a public post:

Stop making the Due Process argument. No one cares about that but us, and we’re already convinced. Insist that your representatives add a line to these laws in committee. Add words to the effect that if a judge finds a person to be dangerous to himself or others that he be taken directly to the mental ward for a 72 hour evaluation. If he’s safe enough to release, he doesn’t lose his guns. If he’s too dangerous to release, then he gets committed. Anyone who wants to prevent violence by unstable, dangerous people wouldn’t leave unstable, dangerous people on the street where they can still cause mayhem.

Sadly, I think this is correct. We lost on this issue because due process was basically our only argument. Only civil libertarians give a shit about due process, and there aren’t a lot of civil libertarians left these days. Neither the populist right nor today’s progressives give a crap about that argument, because both lean more toward the authoritarian side of the political compass.

Sean suggests countering a left-authoritarian argument with a right-authoritarian argument. I believe that would be effective in today’s climate, even if I don’t personally like it. NRA has certainly never hesitated to channel the law-and-order instinct of right-authoritarians to counter left-authoritarians.

I wouldn’t mind a political realignment that would pit left authoritarians (progressives) and right authoritarians (alt-right/populists) against left-libertarians (modern liberals) and right libertarians (small ‘l’ libertarians), but I don’t get the impression that many people believe the struggle is along those lines, and I’ve given some thought as to why. I’d certainly be up for that struggle, because my ‘side’ would be a lot clearer. I’d have more passion for that struggle.

In truth, I believe there are more authoritarians than libertarians, so that coalition doesn’t happen because the libertarian side of that struggle gets crushed. I think that’s why Sean is right.

14 thoughts on “Seen on the Internets: Red Flag Laws and Due Process”

  1. Define your terms. It is very difficult to find “true Scotsman” libertarians or purist authoritarians, though “true believers” will always exist in both spheres. Even the folks at Lew Rockwell and Reason, some of the most likely to be called purist libertarian/anarcho-capitalists (albeit left- and right-leaning respectively), could probably not agree to agree. :)

  2. 1. Certainly share this. It’s public because I treat Facebook like a blog.

    2. I’m not making any sort of authoritarian argument at all. My view is that of David Codrea’s. If you can’t be trusted with a gun you can’t be trusted without a custodian. But it goes beyond that. There actually are a lot of people on the Left who absolutely hate the idea that crazy people might get locked up for their own or society’s safety. They will go nuts (pun intended) about this. They will make every argument in the book against locking potentially crazy people up because they know that this will be used against people they care about.

    By going this route, we put a lot of Leftists in our pockets. Secondly, because the jurisprudence on tossing people in the loony bin is pretty well settled, we can expect that our ability to fight this sort of attack is backed up all the way to the Supreme Court. Seizing a person is a HUGE step, but the courts consider seizing a gun (mere property) to be a minor issue.

    Let’s make them back up their words with deeds. If they REALLY think that people are too crazy to have a gun, let’s get them to justify that they’re NOT so crazy that they need to be in a mental ward. Put the anti-gun Left in a box and see how they like it.

    1. “If you can’t be trusted with a gun you can’t be trusted without a custodian.”

      Very very extremely correct. If you’re too dangerous to possess a weapon, you’re too dangerous to walk the streets. Letting dangerous people roam free “hoping” that they don’t do terrible things is asinine to the extreme….

      1. This is a factor that caused me to conclude that felons should be allowed arms, once they finish their prison sentence. If a given felon is going to be violent, why let him out of prison?

        Of course, strictly speaking, we *have* to, because the law establishes just sentencing for various crimes — but then again, if the person’s offense is really all that violent, then why was the sentencing so light?

        But there’s another factor: if a person has a lighter sentence because he testified against his fellow gang members, isn’t releasing him to the wild without a gun basically throwing him to the wolves without a way to fight back?

      2. “If you can’t be trusted with a gun you can’t be trusted without a custodian.”

        There’s our problem right there! No one has provided for a custodian for cops!

        1. It’s worse: cops, prosecuting attorneys, and judges have been given a strict version of qualified immunity (which, oddly enough, gets more strict the closer it comes to a sitting judge), which means that custodianship of these positions have actually been *stripped away*.

          And this stripping away was done via courts, rather than legislatively, which, to me, is rotten to the core, when you consider the conflicts of interest involved.

  3. Large L Libertarians beclowned themselves in the last election. Small l libertarians want to stick to the purity of their principles in the face of an existential threat from the left. There are no modern liberals left. So you are right that the choice is between the authoritarian right and the totalitarian (my amendment) left.

    1. Large L-Libertarians beclown themselves every election; the last one was just more noticeable, because *everyone* beclowned themselves, and the Libertarians were almost an alternative, for once. Unfortunately, because the Libertarian Party has no real power, it becomes an attractor for crazy people and clowns.

      As for small-l libertarians? It’s an illusion to believe that they have major influence on American politics — America has *always* favored a *certain* amount of authoritarianism, all the way from the founding. Even John Locke himself believed it was sometimes justified to do things like require someone to be buried in a wool suit (rather than sell that suit to someone who would make use of it — for the benefit of the wool trade) or to suspend rights in a time of crisis. For all the anger libertarians have towards Abraham Lincoln, he was acting in this tradition — a tradition, incidentally, that goes back to Roman times.

      No, libertarianism doesn’t have much influence on American politics. America is unusual only in the sense that (1) we value liberty so much, we even have a token party that is devoted to it, and (2) every so often (particularly when the country was founded, and, to a lesser extent, when the Constitution was adopted) those crazy liberty-valuing people will actually somehow manage to influence politics in a liberty-supporting sort of way.

      So, as much as it pains me to say it, we shouldn’t couch our defense of liberty in liberty-preserving language. If the end result is that we have more liberty, though, it’s not necessarily a bad thing!

      1. “because the Libertarian Party has no real power, it becomes an attractor for crazy people and clowns”

        Then how do you explain the Republican Party, which seems to have plenty of power, and yet has become our National Clown Depository?

        (Note: Not all clowns are funny.)

        1. Every Party has its clowns, and no, not all clowns are funny. But there are plenty of people in the Republican, and to a lesser extent, the Democrat, Parties, who aren’t clowns.

          The Republican Party is a party of spineless wimps doing stupid things. The Democrat Party is a party of evil people, doing everything they can to scheme for power.

  4. Variant on Sean’s argument that I’ve had some success with, with left-leaning people: “You do realize, don’t you, my friend, that you’re basically giving the system (cops, prosecutors, the mental-health bureaucracy) another tool to hassle non-whites for acting in ways that whites find threatening, right?”

    If challenged for backup, point out that our criminal laws and our drug laws are facially race-neutral, and yet blacks and Hispanics get arrested, prosecuted, convicted and imprisoned at much higher rates than whites. Regardless of why you think that happens, it’s a fact that it does. Why do you think that this legal tool, the red-flag law, is going to work out differently in that regard than other legal tools, such as enforcement of laws against drug-dealing or armed robbery?

  5. So instead of taking someones guns first and letting them go through legal hell to get them back, why not just lock them up for 72 hours and see if losing their job on some vindictive ex’s say so sits better with them than having their property taken and effectively held for ransom.

    If a law can be abused, it will be sooner or later. Keep thinking about this.

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