Bill to Prohibit Red Flag Laws Gaining Support

A SC House member has proposed a Bill to stop Red Flag laws in SC by preventing jurisdictions from accepting federal money. The Bill would also make it a crime to propose Red Flags bills for consideration.

District 14 House Representative, Stewart Jones, R — Laurens, has filed a Bill in the House that would prohibit Federal funding for any Red Flag law initiated in South Carolina. The Bill, HB#4704 titled The “Second Amendment Preservation Act,” provides that:

“NO PUBLIC FUNDS, PERSONNEL, OR PROPERTY SHALL BE ALLOCATED FOR THE IMPLEMENTATION, REGULATION, OR ENFORCEMENT OF ANY EXECUTIVE ORDER, OR DIRECTIVE ISSUED BY THE PRESIDENT OF THE UNITED STATES OR AN ACT OF THE UNITED STATES CONGRESS THAT BECOMES EFFECTIVE AFTER JANUARY 1, 2020, THAT REGULATES THE OWNERSHIP, USE, OR POSSESSION OF FIREARMS, AMMUNITION, OR FIREARM ACCESSORIES, AND TO DEFINE THE TERM “FIREARM”.

“Red Flag” law mania seems to be sweeping the country from Virginia to California and even in South Carolina. Red Flag laws, also known as Extreme Risk Protection Order laws, or ERPO, allow individuals or a law enforcement officer who thinks somebody poses an immediate risk to ask a judge to order that person’s guns be taken away “temporarily”. The result of this is the person accused is technically already guilty of a crime because he is often arrested and his property confiscated before any crime has been committed, and it’s all done anonymously.

Tragically, many have died from gunshots at the hands of law enforcement carrying out Red Flag orders. A Maryland man, Gary Willis, was shot to death by police when they arrived with a court issued Red Flag order at his door at 5:15 am. The order was to confiscate his firearms after someone accused him of being a threat. Willis’ niece claimed in a later interview that it was her aunt. Michele Willis told The Baltimore Sun that her uncle “likes to speak his mind,” but “wouldn’t hurt anybody.” She said. “They didn’t need to do what they did.”

District 37 House Rep. Steven Long, R — Spartanburg, a co-sponsor of the Bill, pointed out that not everybody has the best interest of others at heart, commenting that “Red Flag laws could be weaponized and used against somebody in a vengeful way.” Long, countered the argument concerning mental health, saying, “There is already a process to remove firearms from those with mental issues.” He said, “It gets down to due process, somebody must have their day in court.”

Red Flag Laws Violate Constitution

Due Process is guaranteed under ARTICLE 1 Declaration of Rights, of the SC Constitution. It states there:

SECTION 3. Privileges and immunities; due process; equal protection of laws.

The privileges and immunities of citizens of this State and of the United States under this Constitution shall not be abridged, nor shall any person be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. (1970 (56) 2684; 1971 (57) 315.)

The premise of Red Flag laws is to prevent crime before it happens. Thus, an accusation is all that is required under these type laws to make one guilty. That means due process of law is removed from the equation, along with the person’s firearms, by law enforcement personnel. In order to retrieve any firearms taken, the accused must prove that he is innocent of a crime he never committed, and this can take months.

SC House Rep. Stewart Jones spoke with The Standard editor Michael Reed on Tuesday about his proposed House Bill 4704 to stop Red Flag laws in SC.

Jones said the bill is still in committee and not on the agenda this week. He indicated that the bill should come up before the Judiciary Committee soon. House Bill 4704 currently has 33 co-sponsors.

“The enforcement mechanism would be to remove an elected official from office if they push [for passage of] a Red Flag law,” Jones said. This would follow Federal law guidelines for violating the oath of office and the Constitution.

Red Flag Laws Violate Oath of Office

All elected officials are required by law to voluntarily take an oath to support and defend the founding documents of law which guarantees our Republican form of government. That oath gives assurances that anyone who is elected is either going to support the Constitution in good faith or take the proper steps to amend the founding document.

The oath of office of South Carolina is as follows:

“I do solemnly swear (or affirm) that I am duly qualified, according to the Constitution of this State, to exercise the duties of the office to which I have been elected, (or appointed), and that I will, to the best of my ability, discharge the duties thereof, and preserve, protect, and defend the Constitution of this State and of the United States. So help me God.” (1972 (57) 3181; 1973 (58) 83.)

Below is an alternative oath often used:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

A Federal law regulating the oath of office by government officials can be found at 18 U.S.C. 1918, and provides penalties for violation of an oath of office described in 5 U.S.C. 7311 which include: (1) removal from office and; (2) confinement or a fine. 5 U.S.C. 7311, makes it a federal criminal offense (and a violation of oath of office) for anyone employed in the United States Government (including members of Congress) to “advocate the overthrow of our constitutional form of government”.

The definition of “advocate” is further specified in Executive Order 10450 which for the purposes of enforcement supplements 5 U.S.C. 7311. One provision of Executive Order 10450 specifies it is a violation of 5 U.S.C. 7311 for any person taking the oath of office to advocate “the alteration … of the form of the government of the United States by unconstitutional means.” Our form of government is defined by the Constitution of the United States. It can only be “altered” by constitutional amendment. Thus, according to Executive Order 10450 (and therefore 5 U.S. 7311) any act taken by government officials who have taken the oath of office prescribed by 5 U.S.C. 3331 which alters the form of government other than by amendment, is a criminal violation of the 5 U.S.C. 7311.

Red Flag laws violate the spirit and letter of our State and US Constitutions including our right to keep and bear arms, and our guarantee of being innocent until proven guilty through due process. Rep. Jones indicated the bill is important to prevent a devastating scenario for innocent people.

Jones said, it is important for citizens to ask their State legislator to get behind proposed House Bill #4704 very soon to get additional legislator support. “Unless we can find Reps who will defend the Constitution we will lose the battle in SC.” He concluded, “we must stay vigilant!”

Michael Reed is Editor of The Standard.

Edited 1:55am 1-31-20

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