# Do red flag laws violate the 5th and 6th Amendments? (US) **URL:** \ **Category:** Great Debates\ **Created:** [June 15, 2022, 8:35pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260 "2022-06-15T20:35:09Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [June 17, 2022, 2:08pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/21 "2022-06-17T14:08:35Z")
> [@pkbites](#): > > And many pre-seizure hearings happen sans subject. They are unaware of such hearing, they have no opportunity to confront their accuser and impeach their credibility, no right to have counsel present, no chance to testify on their own behalf. The CLEO rep of wherever they live just shows up and seizes their guns. How on Earth is that constitutional, how is that not prime for abuse? Is this different than executing an arrest warrant? If I replace “seizes their guns” with “arrests them and puts them in jail for processing” does it suddenly become totally fine with you? ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [June 17, 2022, 2:18pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/22 "2022-06-17T14:18:37Z")
The warrant is part of due process. It’s even mentioned in the 4th Amendment. And included in that process is the right to an attorney, the right to compel witnesses, the right to confront accusers, the right to testify on ones own behalf. In many places red flag laws don’t allow for any of this. All it takes is for one Karen to screw a guys life up. But let’s say, for a moment, that you have a guy who is a threat. He’s been going around saying how he wants to kill a bunch of kids, and other nutty things. Are you just going to take away his guns and that’s that? End of threat? Really? ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [June 17, 2022, 2:27pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/23 "2022-06-17T14:27:42Z")
> [@pkbites](#): > > And many pre-seizure hearings happen sans subject. They are unaware of such hearing, they have no opportunity to confront their accuser and impeach their credibility, no right to have counsel present, no chance to testify on their own behalf. The CLEO rep of wherever they live just shows up and seizes their guns. How on Earth is that constitutional, how is that not prime for abuse? That is the same way we issue search and arrest warrants. You generally don’t have the ability to contest those prior to issuance and execution. You also don’t have the ability to contest a temporary psychiatric hold in an hearing _prior_ to it being imposed generally speaking. It would be weird to believe our constitution lets the government seize evidence from your home, or **seize your physical body** without a hearing in which you get to object before hand, but for the specific corner case of firearms this is invalid. In the cases of warrants, psychiatric holds et cetera the constitution has been found to be satisfied as long as there is some due process to challenge it at some point, it does not have to occur before hand. In the case of arrest and psychiatric holds you generally have to get some sort of hearing quite quickly as a check against the government just acting egregiously bad. Is it your assertion a temporary seizure of firearms should be held to a higher standard of scrutiny than a temporary detainment of a human person in jail? > [@pkbites](#): > > Then some of you naively believe that just because some guns are removed they all have been removed. And spare me the fantasy about registration because that’s not happening anytime soon. Let’s keep to the laws and procedures currently in place. There is no way of knowing if you confiscated all of someones firearms in most of the United States. And yet police regularly take the guns they find from someone away from them for “police protection”, despite not knowing for sure if “they have other guns.” Are you saying the police are behaving illogically in those cases? > [@pkbites](#): > > And some of you naively believe that removing guns removes the threat. If someones actions and/or language has made them appear to be a threat to themselves or others why are you focusing on one particular tool they may use and not on the person themselves? And yet, police routinely disarm people they interact with for “officer safety”, are you saying the police are behaving illogically? FWIW red flag seizures of guns should go through a “sufficient level of due process”, which to me would mean the initial order should be similar to acquiring a warrant, and sustaining the order should require some hearing that has due process and the ability of the subject to object with legal counsel (this is how psychiatric commitments work.) The objections @pkbites have laid out are poorly argued and illogical and have nothing to do with due process. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [June 17, 2022, 2:28pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/24 "2022-06-17T14:28:51Z")
> [@pkbites](#): > > The warrant is part of due process. It’s even mentioned in the 4th Amendment. And included in that process is the right to an attorney, the right to compel witnesses, the right to confront accusers, the right to testify on ones own behalf. Before you get taken away and put in a cell? If you’re claiming red flag laws don’t allow the person to get a hearing to argue for their guns back, I’d need proof that this is how they’re constructed. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [June 17, 2022, 2:34pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/25 "2022-06-17T14:34:53Z")
As a layman, I would think one constitutional issue would be the level of evidence needed to seize the guns. If Karen says, “Grandpa is always yelling at the kids on the lawn. I’m afraid he’s going to shoot them.” with nothing else and no evidence and that is sufficient testimony, that should be a problem. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [June 17, 2022, 2:58pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/26 "2022-06-17T14:58:41Z")
> [@Martin\_Hyde](#): > > > [@pkbites](#): > > > > And some of you naively believe that removing guns removes the threat. If someones actions and/or language has made them appear to be a threat to themselves or others why are you focusing on one particular tool they may use and not on the person themselves? > > And yet, police routinely disarm people they interact with for “officer safety”, are you saying the police are behaving illogically? You’re talking about a police contact where an armed individual could constitute an immediate imminent threat. If the person is free to go lawfully possessed weapons are returned. Otherwise you have not answered my question. If a person is a threat to themselves and/or others why the focus on just one tool? Why not confiscate everything they have that could hurt someone? Including vehicles? Why not mandating psychological analysis? Why this belief that just removing guns makes a dangerous person harmless? Either a person is a threat or they are not. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [June 17, 2022, 3:02pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/27 "2022-06-17T15:02:23Z")
> [@Saint\_Cad](#): > > As a layman, I would think one constitutional issue would be the level of evidence needed to seize the guns. If Karen says, “Grandpa is always yelling at the kids on the lawn. I’m afraid he’s going to shoot them.” with nothing else and no evidence and that is sufficient testimony, that should be a problem. But that is exactly where this is headed and exactly where red flag supporters want it headed. It is a back door confiscation plan. It has nothing to do with saving lives. If it did they would focus more on the individual who is acting nutty. Just taking his guns (the ones you know about) and letting Mr Nutball be solves nothing. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [June 17, 2022, 3:05pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/28 "2022-06-17T15:05:38Z")
> [@pkbites](#): > > But that is exactly where this is headed and exactly where red flag supporters want it headed. It is a back door confiscation plan. It has nothing to do with saving lives. That’s a fucking lie. There ARE people in this thread who don’t give a shit about saving lives, but it ain’t the ones who want red flag laws. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [June 17, 2022, 3:06pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/29 "2022-06-17T15:06:33Z")
> [@Cheesesteak](#): > > > [@pkbites](#): > > > > But that is exactly where this is headed and exactly where red flag supporters want it headed. It is a back door confiscation plan. It has nothing to do with saving lives. > > That’s a fucking lie. That didn’t take you long. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [June 17, 2022, 3:20pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/30 "2022-06-17T15:20:00Z")
What didn’t take long, to point out you’re a liar? You should expect that when you lie. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [June 17, 2022, 3:28pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/31 "2022-06-17T15:28:11Z")
> [@pkbites](#): > > You’re talking about a police contact where an armed individual could constitute an immediate imminent threat. If the person is free to go lawfully possessed weapons are returned. And yet: > [@pkbites](#): > > Otherwise you have not answered my question. If a person is a threat to themselves and/or others why the focus on just one tool? Why not confiscate everything they have that could hurt someone? Including vehicles? Why not mandating psychological analysis? Why this belief that just removing guns makes a dangerous person harmless? Either a person is a threat or they are not. You’re fine with police disarming people preemptively with no firm evidence. Either the person is a threat or they aren’t. If they’re a threat, maybe they should be handcuffed immediately? ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [June 17, 2022, 3:39pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/32 "2022-06-17T15:39:12Z")
> [@Cheesesteak](#): > > What didn’t take long, to point out you’re a liar? You should expect that when you lie. No, it didn’t take long for you to start calling names as that is the only recourse your side has. If red flag laws were about saving lives from someone who is a threat there would be far, far more to it than just removing guns. But there isn’t. ---
**Author:** ![What\_Exit](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/what_exit/32/10652_2.png) [@What\_Exit](https://boards.straightdope.com/u/What_Exit)\ **Post date:** [June 17, 2022, 3:45pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/33 "2022-06-17T15:45:55Z")
---
**Author:** ![What\_Exit](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/what_exit/32/10652_2.png) [@What\_Exit](https://boards.straightdope.com/u/What_Exit)\ **Post date:** [June 17, 2022, 3:45pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/34 "2022-06-17T15:45:59Z")
**Warning** for **Cheesesteak** , you cannot insult other posters outside the Pit. You can go after his post. You can try to show why they’re wrong. But you really cannot call them a **liar**. ---
**Author:** ![What\_Exit](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/what_exit/32/10652_2.png) [@What\_Exit](https://boards.straightdope.com/u/What_Exit)\ **Post date:** [June 17, 2022, 3:49pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/37 "2022-06-17T15:49:33Z")
> [@pkbites](#): > > No, it didn’t take long for you to start calling names as that is the only recourse your side has. And please, flag such posts in the future. Replies like this are fairly borderline. ---
**Author:** ![What\_Exit](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/what_exit/32/10652_2.png) [@What\_Exit](https://boards.straightdope.com/u/What_Exit)\ **Post date:** [June 17, 2022, 3:57pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/38 "2022-06-17T15:57:09Z")
This topic was automatically opened after 8 minutes. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 17, 2022, 4:00pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/39 "2022-06-17T16:00:50Z")
> [@pkbites](#): > > But that is exactly where this is headed and exactly where red flag supporters want it headed. It is a back door confiscation plan. It has nothing to do with saving lives. If you’re going to get upset about people saying your statements are lies, perhaps don’t accuse other people of lying about their own motivations. Your idea–that folks advocating red flag laws aren’t doing so out of a belief that they’ll save lives–is as preposterous as it is pernicious. You offer it with zero evidence. I won’t pretend to know why you’d do so, but it’s a statement so devoid of content that it barely rises to the level of false. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [June 17, 2022, 4:01pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/40 "2022-06-17T16:01:05Z")
> [@D\_Anconia](#): > > Yes, it does make a difference. A state court ruling in CT only applies in CT. It’s only binding in CT, but it’s my understanding that courts routinely look to other jurisdictions for precedent, so it’s still relevant. And if a review of the case histories show that the issue has come up 12 times in 12 different states (or whatever) with the same result in each, it’s probably safe to say that that’s the same way a federal court would rule, as well. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [June 17, 2022, 4:12pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/41 "2022-06-17T16:12:16Z")
> [@pkbites](#): > > It has nothing to do with saving lives. Funny thing, if guns didn’t take the lives of 30,000 Americans a year, I wouldn’t care if you drove around with a 50 caliber machine gun attached to your roof of your car. Deaths are literally the only reason anyone wants anything to do with your precious guns. For all your claims that new laws won’t work, you and your side haven’t come up with a single thing that does work. All we’re getting from you is nonsense about how taking someone’s gun based on a claim and a warrant is more unconstitutional than throwing them in a cage based on a claim and a warrant. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [June 17, 2022, 5:58pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/42 "2022-06-17T17:58:28Z")
Not only that, in his world it’s fine for a police officer–someone who is often hired specifically due to lower intelligence ([cite](https://thefreethoughtproject.com/court-police-departments-refuse-hire-smart/)), and who is rarely educated in the law, to just disarm anyone they want on any mere pretense or “because they’re scared.” But he’s against a judge, highly educated, trained in the law, being able to issue a writ that disarms someone after a procedural hearing. [Previous page](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260.md?page=1) [Next page](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260.md?page=3)