Soviet Justice Comes To America
RINO Rick is playing coy with his impending school safety proposal, refusing to say whether Extreme Risk Protection Orders – now rebranded as ‘red flag laws’ – will be part of it. U.S. Representative Debbie Dingell has no such qualms. The Wicked Witch of West Bloomfield announced yesterday that she intends to introduce federal Extreme Risk Protection Order legislation based upon Indiana Code Title 35, Article 47, Chapter 14 (IC 35-47-14). She claimed on Fox News Live that West Michigan Congressman Fred Upton, a Republican, will be a co sponsor.
Indiana Code 35-47-14 establishes procedures for law enforcement to seize privately held firearms from individuals deemed ‘dangerous’. An Indiana law enforcement officer can petition a circuit or superior court for a warrant to “search for and seize a firearm in the possession of an individual who is dangerous”. Or the Indiana law enforcement officer can just go ahead and both search for and seize firearms in the possession of any individual; then at his leisure submit a written statement to the circuit or superior court with jurisdiction, declaring the individual to be dangerous ex post facto.
An Indiana law enforcement officer can declare the individual to be dangerous on his own accord, or rely on the declaration of a third party informer. The law enforcement officers and informants are not required to prove any qualifications in court. The law enforcement officer and the informants are unchallenged. Their assertions alone transform an otherwise legal activity – private firearms possession – into a crime.
Indiana Code 35-47-14 claims that this is legally sufficient probable cause, but is it?
Someone who may or may not know you claims that you are dangerous. The informants are not required to prove any qualifications in court. Individuals without any mental health credentials – including the Judge – pass legal judgment upon the mental health of a third party remotely without challenge. The court is not obligated to seek the counsel of a qualified, independent, mental health professional. A legal process which would make the KGB in the old USSR proud.
You only find out an ERPO exists when the police break down your door to effect the seizure. You have no opportunity to contest the allegation of being dangerous or the qualifications of the informants in front of a judge prior to the seizure. It is a bolt out of the blue. You are afforded 14 days to file a counter action, but good luck with that. The seizure of your firearms is a fait accompli. Judges will be quite content not to disturb events past, if for no other reason than it would embarass their original determination. The Indiana Code 35-47-14 confiscation process is entirely rigged from the outset.
Genuine probable cause is never established. Indiana Code 35-47-14 does not create a warrant consistent with the U.S. Constitution’s Fourth Amendment. Rather, it cloaks obnoxious writs of assistance as constitutional warrants. The distinction here is the absence of probable cause. Abusive writs of assistance were the very reason that the Fourth Amendment was required by the anti Federalists to secure ratification of the U.S. Constitution. And an underlying cause of the American Revolution.
There are mentally ill people in our society who should not have access to firearms. Those people really need to be removed from society if they are a true threat to public safety, as there are many other means for them to inflict mayhem beyond firearms. Automobiles, knives, chemicals, and so on. But that is not on offer here. The proponents of ERPO red flag laws are not serious about protecting the public. They are serious about confiscating firearms.
Mental issues do not justify denial of constitutional process. There is absolutely no valid reason why an individual cannot be invited to his ERPO hearing. Those hearings can be expedited if the authorities genuinely believe an impending danger exists. Judges are routinely rousted at all hours to approve warrants. They can be imposed upon to conduct an ERPO red flag law hearing. It is their job. Law enforcement officers can arrest the subject of an ERPO hearing right on the way to his ERPO hearing. It is their job.
The cavalier treatment of constitutional rights here is how you know that ERPO red flag laws are about firearms confiscation, not public safety.
(18)Nuh Uh.
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Excellent piece!
I have been arguing the point about mental illness being used as a slippery way in which to confiscate.
We expect Debbie to be on the wrong side of things as a matter of course, but some folks might still be confused as to the damage to our constitution caused by Upton while he masquerades as a Republican.
AND...the slippery slope continues...started with WAVA (Women against violence act--thank you Joe Biden for that and school no gun zones--both pieces of crap) then giving cops the right to arrest men without probable cause just because some women, said he hit her. (statistically men suffer domestic violence in greater numbers--not kidding here) giving rise to PPO's (personal protection orders--crappy piece of useless paper I say) PPO's often entered without hearing, also seizes guns and denies future gun ownership--VA says anyone getting VA pension waives 2nd rights (Thank you Congressmen Bergman for fixing this) and two dingbat boneheads from Michigan no doubt--don't get it.
“Regarding the governments ability to impose "Reasonable Restraint" which has now become the mantra of our government. Supporters of the Amendment claim they have a constitutional or Second Amendment right to keep and bear arms. Opponents counter that even if that were the case, the federal government was granted the general power to place restraints on the right. Both of these assertions are based on a misconception concerning the intent of the document known as the Bill of Rights.
When the Bill of Rights was submitted to the individual States for ratification, it was prefaced with a preamble. As stated in the preamble, the purpose of the Amendments was to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being recommended. The Amendments, when adopted, did not create any so-called constitutional rights or grant the federal government any power over individual rights; they placed additional restraints and qualifications on the powers of the federal government concerning the rights enumerated in the Amendments.
If the Second Amendment is read through the preamble, we find it was incorporated into the Bill of Rights as a “declaratory and restrictive clause” to prevent the federal government from “misconstruing or abusing its power” to infringe on the people’s right to keep and bear arms.
Another way to understand the original intent of the Second Amendment is re-write it through the preamble:
“Because a well-regulated Militia is necessary to the security of a free State, the federal government is expressly denied the power to infringe on the people’s right to keep and bear Arms.”
The preamble and original intent of the Amendments has been suppressed by the institutions of government because it would expose their usurpation of power and perversion of Amendments contained in the Bill of Rights.
By advancing the myth that the Amendments grant the American people their individual rights, the federal government has been able to convert enumerated restraints and qualifications on its power into legislative, executive, judicial and administrative power over individual rights. The federal government claims it was granted the constitutional authority to determine the extent of the individual rights enumerated in the Amendments and/or impose “reasonable restraints” on those rights. This assertion is absurd. The federal government does not have the constitutional authority to ignore, circumvent, modify, negate or remove constitutional restraints placed on its power by the Amendments or convert them into a power over the individual right enumerated in the particular restraint.
A denial of power or an enumerated restraint on the exercise of power is not subject to interpretation or modification by the entity the restraint is being imposed upon. The restraints imposed by the Amendments, which were adopted 4 years after the Constitution was ratified, override the legislative, executive, judicial or administrative powers of the federal government. If this were not the case, then the restraints would be meaningless because the federal government could simply circumvent, modify or remove them. Why would the States have requested and adopted enumerated restraints on federal power, subsequent to their ratification of the Constitution, if the federal government possessed the authority to nullify them?
When the federal government infringes on one of the rights enumerated in the Bill of Rights it is not violating anyone’s constitutional rights; it is violating the additional restraint or qualification placed on its power by the particular Amendment where the right is enumerated. The distinction between rights and restraints is critical. [The right is not given by the Federal Government. Our rights are given by God and are inalienable. Therefore, they can't be limited or taken away.]
As stated in the Declaration of Independence, the American people have unalienable rights that come from a higher source than government or a written document. By acknowledging that people have natural rights, which are bestowed by a creator, the Founders laid the foundation for the principle that government does not have the lawful authority to take away or infringe on those rights. This principle was incorporated into the preamble and structure of the Amendments to secure individual rights from government encroachment; that is why they were designed and imposed as restraints on the exercise of power.
If the individual rights of the people had been created by the Constitution or an amendment to the document, then they would cease to be unalienable because the right would depend on the existence of a document. If the document or a provision of the document disappeared, so would the right. The belief that individual rights were created by a written document has opened the door for the federal government to claim the power to define the extent of any right enumerated in an Amendment. This has transformed constitutional restraints placed on federal power into subjective determinations of individual rights by the institutions of government. By failing to understand the difference between amendments that create rights and amendments that impose restraints on government, the American people are watching their individual rights vanish as they are reduced to the status of privileges bestowed by government because the constitutional restraints placed on federal power are being replaced by government decree.
Opponents of the Second Amendment always try to diminish the right enumerated in the Amendment by asserting that rights are not absolute. This is just another straw man argument because the Amendment is about imposing a restraint of the powers of the federal government concerning a right: not granting a right or defining the extent of a right. In addition, a review of the Second Amendment shows that the restraint imposed by the Amendment does not contain any exceptions.”
Good post, Bryan.
And just to dove-tail on what Ms. Schwartz had written, give some thought to posting an article (or two) here in the future.
Right Michigan can always use Conservatives Writers letting readers know about the political goings on here in Michigan.
And with the campaign season beginning to kick into gear, the more informed we all are on the machinations happening across our state, the sooner we all can act on them if necessary and the better it will be for Michigan as a whole.
Well stated Brian--should be a posted article not just a reply on this board. Knowing your rights and understanding your rights are two different issues.
The Second Amendment can be traced back to the 1689 English Bill of Rights, which was imposed on William and Mary in February 1689 at the conclusion of the Glorious Revolution.
It always was an individual right, fiercely expressed against reigning authority.