Gun Control

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

"All Gun Control Law in the United States is Unconstitutional, until and unless proven otherwise."  Mark W. Smith

2nd April 2023 Post

RED FLAG LAWS

A Red Flag law or Extreme Risk Protection Order says that a particular gun owner is a risk to himself or others and therefore should have their guns taken away. The genesis of the petition to remove someone’s guns is usually due to some kind of altercation; but if you are a gun owner and are having a beef with your neighbor and he knows you are a gun owner, he can petition the court stating that your are an” extreme risk” simply by virtue of you owning guns.

New York’s “Red Flag” law has been ruled “Unconstitutional” by the state’s supreme court citing such action takes away the fundamental right of gun ownership due only to an allegation of the plaintiff. New York law itself prescribes that before a person can have their firearms taken away there must be a medical evaluation of the defendant performed by a medical doctor (MD).  This results in a 48-hour hold. To be held beyond that requires as SECOND medical doctor’s opinion.

Again, the term "red flag" laws generally refers to laws that allow for the temporary removal of firearms from individuals who are deemed to pose a threat to themselves or others. The specific provisions of such laws can vary from state to state, but they typically allow for law enforcement or family members to petition a court to temporarily remove firearms from someone who exhibits signs of mental instability or violent behavior. The idea behind red flag laws is to prevent gun violence and suicide by temporarily limiting an individual's access to firearms during a time of crisis.

While red flag laws have been touted as a way to reduce gun violence, they are also controversial. Some opponents argue that these laws violate due process rights by allowing firearms to be taken away without the person being convicted of a crime. Others argue that the laws are open to abuse and could be used to unfairly target law-abiding gun owners.

It's worth noting that there is no definitive list of "red flag" laws, as the specific provisions of these laws vary from state to state. However, some common features of red flag laws include:

1.     Allowing law enforcement or family members to petition a court for a temporary removal of firearms from individuals who pose a threat to themselves or others.

2.     Requiring a court hearing before firearms can be removed, with the burden of proof on the petitioner to show that the person in question poses a danger.

3.     Limiting the duration of the firearm removal to a set period of time, usually 1-3 months, after which the person can petition to have their firearms returned.

4.     Providing due process protections, such as the right to legal representation and the ability to appeal a decision to remove firearms.

5.     Providing penalties for false or malicious claims made by petitioners.

 Ultimately, the effectiveness and constitutionality of red flag laws are subject to ongoing debate and discussion.

Posted April 2023

New York State Rifle & Pistol Association v. Bruen is a Second Amendment case that was argued before the U.S. Supreme Court in November 2021. The case centers on New York's concealed carry licensing regime, which requires applicants to demonstrate "proper cause" to carry a concealed firearm in public. Here are the key points in the case:

1. The core issue in the case is whether New York's "proper cause" requirement for obtaining a concealed carry permit violates the Second Amendment's right to bear arms. The petitioners argue that the requirement effectively bans ordinary law-abiding citizens from carrying firearms outside the home for self-defense, while the state argues that the requirement is a reasonable regulation designed to promote public safety.

2. The Second Circuit Court of Appeals upheld New York's concealed carry regime in a decision issued in 2018. The court held that the "proper cause" requirement does not run afoul of the Second Amendment because it does not ban all public carrying of firearms and because it is not historically inconsistent with the right to bear arms.

3. The Supreme Court granted certiorari in the case in April 2021, indicating its interest in clarifying the scope of the Second Amendment's protection for the right to carry firearms outside the home. The Court's decision could potentially have significant implications for the regulation of concealed carry across the country.

4. During oral arguments in November 2021, the petitioners argued that the "proper cause" requirement effectively bars ordinary citizens from exercising their Second Amendment rights outside the home, while the state argued that the requirement is consistent with longstanding regulations on concealed carry that have been upheld by courts in other jurisdictions.

5. The Supreme Court's decision in the case is expected to clarify the scope of the Second Amendment's protection for the right to carry firearms outside the home and could potentially impact concealed carry regulations across the country. The decision is expected to be issued in the spring or summer of 2022.

Here are two of the top 2nd Amendment gun control court cases in the past ten years:

1. District of Columbia v. Heller (2008): This landmark Supreme Court case held that the 2nd Amendment protects an individual's right to possess a firearm for self-defense within their home. The case invalidated Washington D.C.'s handgun ban, which prohibited the possession of handguns in the home, and struck down a requirement that firearms kept in the home be kept unloaded and disassembled or bound by a trigger lock.

2. McDonald v. City of Chicago (2010): This case extended the ruling of Heller to apply to state and local governments. The Supreme Court held that the 2nd Amendment applies to state and local governments through the Due Process Clause of the 14th Amendment, and struck down Chicago's handgun ban, which was similar to the one in D.C.

Both of these cases are significant in that they established that the 2nd Amendment protects an individual right to possess firearms for self-defense, and that this right applies to both federal and state governments. However, they do not prevent reasonable regulation of firearms, such as restrictions on certain types of weapons or background checks for gun purchases.

VIDEO REFERENCES: Many of my view points are influenced by other authors and video producers. I want to give them full attribution for their work. I encourage you to watch their videos and subscribe if you like them. You may enjoy watching the below:  

Mark W. Smith, Host, Gun owner, Constitutional Attorney, Member of the U.S. Supreme Court Bar and best selling author, The quote above by Mark W. Smith of Four Boxes Diner is found in this video.  Mark W. Smith is an excellent authority on the 2nd Amendment and Constitutional Law. Watch, subscribe and support.

https://www.youtube.com/watch?v=szpsqk74dy4&t=7s

The Four Boxes Diner:  BREAKING NEWS: Judge Finds Red Flag Law Unconstitutional...  https://www.youtube.com/watch?v=pa_SldFPRsw