VELLECO: Judges Are Ready And Willing To Issue ‘Red Flag’ Orders Seizing Firearms
In his book “Letters to a Young Lawyer,” Alan Dershowitz wrote that “judges are political beings,” and their mission is clear: “If you want to be promoted, side against criminals, even if the Constitution requires you to rule in their favor.”
When this bias is seen in rulings against persons accused of terrible acts, not too many Americans get upset. When dealing with real criminals, Americans may be sympathetic to “when in doubt, lock ‘em up.”
This is the very same bias which judges will bring with them to the bench to rule on applications for “red flag” firearms seizures. When deciding whether to seize guns from people who are not even accused of committing a crime, the operational mantra may not rhyme, but it is likely to be “play it safe and always rule against the guy with the gun.”
In virtually all cases, red flag law applications will be heard by judges serving in the lower trial courts, who have no better insight than anyone else into whether a particular person might commit a crime. These judges are lawyers with comfortable, part-time or full-time, reasonably well-paid jobs, and status in their communities. These honors will continue for years, often along with promotions in the future — unless they make a mistake, that is.
Remember the sage advice given by the political boss played by William Frawley to the trial judge ruling on whether Santa Claus exists in Miracle on 34th Street? The judge was cautioned to weigh the political consequences of his decision before concluding that there is no Santa Claus. And the judge got the message, concluding that “Since the United States government declares this man to be Santa Claus, this court will not dispute it.”
In other words, a judge who takes away a person’s gun will almost never be blamed for trying to protect the public. But a judge who denies a seizure order could possibly be blamed for allowing the wrong person to keep their firearms.
It is easy to understand that, for a judge, no risk is far more career-enhancing than some risk, no matter how small.
What’s more, don’t expect the Constitution to protect you in one of these trial court hearings. Most lawyers will tell you that the average trial judge will never even consider the Second Amendment or firearms protections written into state constitutions. They will assume that if the state legislature wrote a law, the law is constitutional. If it isn’t, then that is an issue to be decided by a higher court, on appeal.
Judges hearing trial level cases like red flag law applications typically tell the parties before them something like “the Constitution is above my pay grade, take it upstairs on appeal.”
Just the name used to describe red flag laws — “extreme risk protection orders” — tells you all you need to know about how the judges will view them. Remember, when the order is signed to authorize the cops to break down your door, a judge often has not even had the chance to look you in the eye.
This article first appeared in The Daily Caller. Click here to read it there.