Editorial: Courts should overturn ‘Red Flag’ law

A number of Nevada counties have passed Second Amendment sanctuary resolutions in response to state lawmakers passing a “Red Flag” law in 2019 that would allow persons accused of being a potential danger to themselves or others to have their firearms confiscated by order of a judge.

But rather than threatening to flout the law, the better route is the one taken by Elko County commissioners recently and that is to challenge the law in the courts. The commissioners voted to join a lawsuit filed in December by attorneys for NevadansCAN (Citizens Action Network) that argues the “Red Flag” section of Assembly Bill 291, which was passed on a near party-line vote with Democrats in favor and Republicans opposed, is unconstitutional because it violates the right to due process and the right to keep and bear arms — as guaranteed by the Second Amendment of the U.S. Constitution and the Nevada Constitution, which states, “Every citizen has the right to keep and bear arms for security and defense …”

According to the Elko Daily Free Press, at the start of the meeting Elko County Sheriff Aitor Narvaiza declared, “On Jan. 7, 2019, I was elected sheriff of Elko County. I took an oath to protect the constitution of the United States and the constitution of the state of Nevada. I’m here to tell the lawmakers to keep your hands off our guns.”

He was quoted as saying, “Let’s enforce the laws that we have which are reasonable instead of enacting more laws which are unconstitutional. … A great president once said this country cannot be defeated in combat, but it can be defeated within. Right now this country is crumbling, slowly, due to weak-minded politicians and lawmakers who push unconstitutional laws for personal gains and to fill their pockets.”

He received several rounds of applause the newspaper reported.

The litigation appears to have sound legal footing due to a recent unanimous Nevada Supreme Court ruling. The court found that gun ownership is such a fundamental right that it cannot be taken away merely by a judge’s ruling, opining that a person charged with misdemeanor domestic battery is entitled to a trial by jury, because the state Legislature in 2017 enacted a law saying someone convicted of such a crime could have their right to keep and bear arms denied.

The U.S. Supreme Court has held that only those persons charged with a “serious” crime are entitled to a jury trial. The unanimous Nevada opinion written by Justice Lidia Stiglich states the change in state law to prohibit firearms possession by someone convicted of domestic violence effectively increases the “penalty” and makes the crime “serious” rather than “petty.”

“In our opinion, this new penalty — a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions — ‘clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one,’” Stiglich wrote in a case out of Las Vegas.

The NevadansCAN lawsuit declares, “This (“Red Flag”) law makes mincemeat of the due process of law, will endanger law enforcement and the public, and is a tool for stalkers and abusers to disarm innocent victims. Empirical data is available that nearly a third of such orders are improperly issued against innocent people, in states with experience of the operation of such a law.”

Proponents of such laws often cite the Oct. 1, 2017, mass shooting that left 58 country music concert goers dead in Law Vegas as justification, but neither this “Red Flag” law nor the recently enacted tougher background check law would have prevented that tragedy.

AB291 defies the Second Amendment right to bear arms, the Fourth Amendment right to be secure from unreasonable searches and seizures, the Fifth Amendment right to not be deprived of life, liberty, or property without due process of law and the 14th Amendment prohibition against states abridging the privileges and immunities of U.S. citizens.

It must be overturned and litigation is the proper route to do so.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

10 comments on “Editorial: Courts should overturn ‘Red Flag’ law

  1. […] Source: Editorial: Courts should overturn ‘Red Flag’ law […]

  2. Anonymous says:

    “The first thing I like to do is grab the guns and worry about due process later.

    Oh, and by the way, Article 2 gives me the right to do anything I want.”

    We no longer live in a country of laws, or hadn’t you heard?

  3. That’s why I did not vote for Trump.

  4. Anonymous says:

    Ok. Given your history though of speaking out vociferously against those you disagree with, your failure to do so here leads me to believe you like what he’s done.

    And I’d guess you’ll vote for him next time (assuming he isn’t burning in hell before then)

  5. What choice will I have?

  6. Anonymous says:

    Principles or Trump?

  7. Steve says:

    Trump has never been in my circle of interests. IMO, he’s all about himself, always.
    Rolling Stones are good character judges too.

    “But once the promoter left, Trump resumed his news conference – and that prompted Richards’ angry ultimatum. Cohl returned for a second confrontation with Trump, and he said it quickly got out of hand. Trump brought along three brass-knuckled bodyguards, according to Cohl, and then went “berserk.”

    Increasingly worried, Cohl said he called his own security detail, which was already en route with “tire irons and hockey sticks and screwdrivers,” Cohl recalled. “‘Now are you gonna go, Donald?’ And off he went, and that was the night I fired Donald Trump.”

    https://ultimateclassicrock.com/keith-richards-donald-trump/

    And he hasn’t earned my vote this time either.

    Sadly, there aren’t any others who have. Hopefully, this changes before November.

  8. Rincon says:

    I see no alternative process outlined in this piece. Am I correct that you therefore advocate allowing felons and crazy people to own unlimited firearms? As the law stands right now, it’s permissible to institutionalize anyone who presents a danger to himself or others, but you say they need to be allowed all of the firearms they want?

    There’s a reason why our intentional homicide rate is higher than any other advanced nation on the planet (according to Wikipedia, there are 142 nations with a lower rate than ours).https://en.wikipedia.org/wiki/List_of_countries_by_intentional_homicide_rate If you don’t think Second Amendment fanatics have anything to do with that, why can’t you come up with another explanation?

    China had a point when they responded to our criticism of their human rights record by saying that we have no right to talk, since our people aren’t even safe walking the streets. Face it. Our track record as a civilized nation has taken a dramatic turn for the worse in so many ways, yet we somehow think we’re superior to the many, many nations that outperform us. Why do political Conservatives consistently oppose adopting ANY of the ways of countries that have been kicking our butts for decades? Go ahead, wave your little flag, grab your Bible, and keep ignoring our sad and unbelievable descent.

  9. […] Courts should overturn “Red Flag” law A number of Nevada counties have passed Second Amendment sanctuary resolutions in response to state lawmakers passing a “Red Flag” law in 2019 that would allow persons accused of being a potential danger to themselves or others to have their firearms confiscated by order of a judge. […]

  10. […] Courts should overturn “Red Flag” law A number of Nevada counties have passed Second Amendment sanctuary resolutions in response to state lawmakers passing a “Red Flag” law in 2019 that would allow persons accused of being a potential danger to themselves or others to have their firearms confiscated by order of a judge. […]

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