More than two dozen counties in Colorado have taken a page from the left’s playbook by declaring themselves “Second Amendment sanctuary counties” in anticipation of the passage of a bill that allows local governments to seize people’s guns without due process.
In February, Democrats in the Colorado legislature introduced HB19-1177, commonly known as the Red Flag bill. The law allows the government to seize firearms from a law-abiding owner after as long as a petitioner “establishes ” by a preponderance of the evidence that the gun owner “poses a significant risk to self or others.”
This Is an Insane Idea Ripe for Abuse
There’s a lot wrong with this idea. First, the Red Flag bill makes it easy for anyone to file a petition, including angry former lovers from many moons ago. A petitioner can file on the phone or in person, doesn’t have to provide his address, and doesn’t have to reside in Colorado. A petitioner doesn’t have to appear in person at any hearing, and there is no cost to file a petition.
The petitioner only has to meet the “preponderance of the evidence” standard, which is a lower standard than the “beyond a reasonable doubt” standard used in criminal trials. It basically asks whether the petitioner’s proposition is more likely to be true than not true. This is the same standard that kangaroo courts for campus sexual assault and harassment rely on, per the guidance of the Obama administration.
Second, the Red Flag bill ensures gun owners, not their accusers, bear the burden of proof, and makes it very difficult for the gun owner to defend his or her constitutional right to bear arms. The owner is completely unaware a petition has been filed against him until the police show up to confiscate all his firearms. Since a search warrant is issued at the same time a temporary extreme risk protection order (ERPO) is issued, the police may search the house even after the owner surrenders his firearms.
The first opportunity for the owner to defend himself comes at the 14th day after the ERPO hearing, after he has already surrendered his firearms. Since the whole thing is treated as a civil process, the owner is not eligible for a public defender. So he also must pay attorneys to get his guns back. If he can’t afford an attorney, he is out of luck.
The owner also must provide “clear and convincing evidence,” a higher standard than the “preponderance of the evidence” standard used to take his guns, to show he doesn’t pose a threat and to request his firearms back. However, a judge who isn’t satisfied can still issue a permanent ERPO, which prohibits the firearm’s owner from “possessing, controlling, purchasing, or receiving a firearm for 364 days.”
During this time, the owner has only one chance to request the termination of the ERPO. The original petitioner will be notified of such a request and is allowed to ask for an ERPO extension (via phone, not in person). As you can see these double standards make false accusations possible while doing little to ensure a fair due process for Colorado gun owners.
Third, the Red Flag bill likely won’t make communities any safer. Conservatives in Colorado argue that if there’s sufficient evidence proving the gun owner poses a danger to others, the police should take custody of the person. Simply taking firearms away but leaving a known dangerous person out in the community seems irresponsible. As we learned from past tragic attacks domestically and internationally, someone who is determined to do evil will use anything, whether a knife, a gun, a delivery van, or other objects, to harm others. So removing the person rather than tools seems a more sensible solution.
Weld County Commissioner Steve Moreno said the Red Flag bill “is nothing more than a feel-good measure that will not stop the actions it is aiming to prevent. There are other solutions that must be seriously considered when talking about mental health issues in this country. This bill is not it.” However, since Democrats control the Colorado Assembly and governor’s mansion, the Red Flag bill is expected to pass easily and be signed into law by Gov. Jared Polis soon.
Counties Declare Second Amendment Sanctuaries
The Red Flag bill splits Colorado law enforcement. While Douglas County Sheriff Tony Spurlock offered his support, sheriffs from other countries including Weld County Sheriff Steve Reams oppose this bill because they are concerned it is unconstitutional. They also don’t want to spend law enforcement resources in building and guarding the storage for weapons confiscated from owners.
In anticipation of the bill’s passing, more than two dozen Colorado counties, including Douglas County, the seventh-most populous county in Colorado, passed “Second Amendment Sanctuary” resolutions. Many did so at the request of their duly elected sheriffs.
These counties affirm their support for their sheriffs “in the exercise of his sound discretion to not enforce against any citizen an unconstitutional firearms law.” They also promise not to appropriate government funds to build storage facilities for firearms seized by law enforcement. More counties are either considering similar measures or, like Arapahoe County, the third-most populous Colorado county, waiting for the final wording of the bill to decide the best course of action.
Facing increasing opposition from counties, Colorado Attorney General Phil Weise, a supporter of the Red Flag bill, dismissed the resolutions as something that couldn’t override a state law. He said sheriffs in those counties should resign if they refuse to follow the law. El Paso County Sheriff Bill Elder responded that he and county commissioners would “vigorously challenge the constitutionality” of the bill and “protect the second, fourth, fourteenth and fifteenth amendment rights of all lawful gun owners in the state, and not just in El Paso County.”
It looks like a legal battle will emerge as soon as the Red Flag bill passes.
Sanctuary Provisions Are a Double-Edged Sword
Declaring a jurisdiction a sanctuary from laws they don’t like is an idea originally embraced by the left. Immigration sanctuaries are jurisdictions that have decided not cooperate with certain federal immigration enforcement actions or enforce federal immigration laws regarding illegal immigrants accused or convicted of crimes. It’s reported that in 2015 alone, “more than 200 state and local jurisdictions did not honor requests from Immigration and Customs Enforcement to detain individuals.” Today the United States has more than 300 such sanctuary jurisdictions.
Back in 2013, Victor D. Hanson warned the left: “For every left-wing city that declares immigration statutes inoperative, a right-wing counterpart might do the same with the Endangered Species Act, gun-registration laws, affirmative action, or gay marriage. The result would be chaos and anarchy, not compassion.”
It’s interesting that the left now pushes back against gun sanctuary counties by using similar language to what conservatives have said about immigration sanctuary cities—”Our nation and state depends on the rule of laws” and “Everyone must obey the law.” But there is a fundamental difference between sanctuary on the left versus that on the right.
The left supports illegal immigrant sanctuary because they don’t want to obey federal laws they don’t like. They choose to protect law-breakers who may pose security threats to communities and law-abiding citizens. The left supports the Red Flag bill and opposes the gun sanctuary counties because they oppose gun ownership and Second Amendment rights. Once again, they rely on a state law to disobey federal laws they don’t like.
Conservatives believe that federal laws trump state laws and our Constitution trumps them all. No one gets to choose which part of the Constitution to disregard. Therefore, conservatives reject illegal immigrant sanctuaries and support the “Second Amendment Sanctuary” for the same reason—upholding the law of the land and defending law-abiding citizens’ constitutional rights.
Colorado isn’t alone in this fight. A similar Red Flag bill is working though the New Mexico legislature right now. Twenty-nine out of 33 sheriffs there signed a letter disapproving of the bill, and 24 counties have passed a Second Amendment sanctuary resolution, affirming their support of their sheriffs not enforcing what they view as unconstitutional gun control legislation.
What’s happening in Colorado and New Mexico has national implications because similar Red Flag bills passed in at least eight blue states in the United States in 2018, including New York, New Jersey, and Illinois. In recent testimony before the U.S. Senate Judiciary Committee, David Kopel, a Constitution scholar at the Independence Institute, said “Nearly a third of such orders are improperly issued against innocent people.”
Conservatives in these blue states have been looking for ways to push back against aggressive gun control legislation that they believe infringes upon their constitutional rights. Now Colorado and New Mexico have shown them what they can do.