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Wisconsin doesn’t need a red flag law

Empower Wisconsin | Nov. 7, 2019

By Adam Jarchow

(Editor’s note: Reprint of a column originally published on Sept. 26) 

An ambitious politician never lets a good crisis go to waste. That means every event they wish to exploit is indicative of a crisis. And in times of crisis, they reason, it is necessary and appropriate to take away our constitutional rights for the greater good.

Wisconsin Gov. Tony Evers has joined the call for stricter state gun laws in the wake of mass shootings. He has ordered the Legislature into special session to take up a host of gun-control bills. 

Evers announced his support for a state red flag law that would allow a judge to issue a temporary injunction prohibiting a person from possessing a gun if the court finds “reasonable grounds” that the person is “substantially likely to injure” themselves or others.

Subjective words like reasonable and substantial make me nervous, particularly when it comes to giving prosecutors and judges the power to infringe on my civil rights without notice or due process.

Take the recent John Doe investigations in Wisconsin.

A judge granted partisan prosecutors the authority to secretly seize millions of personal, business and private communications from dozens of politically active individuals and organizations in Wisconsin. Some people ended up on the other end of a secret subpoena simply because they participated in a conference call. 

That certainly fits my definition of substantial, but reasonable? Not so much.

Subjects of the John Doe investigation had their free speech, property and privacy rights violated without notice, and without any opportunity to make their case before a judge. Likewise, the proposed red flag law allows law enforcement to confiscate your weapons before you’ve had your day in court.

Under current law, anyone subject to a domestic abuse or child abuse injunction is prohibited from possessing a firearm and must surrender all guns. The firearms can’t be returned until a court determines the injunction has been lifted or expires. In these cases, the subject of the injunction had an opportunity to appear before a judge prior to having their rights restricted.

That’s due process. And without it, all of our rights are subject to the whims of ambitious politicians with a good crisis.

But does Wisconsin have a crisis when it comes to gun possession? Not according to Evers.

“In a state where nearly three of four gun deaths are suicide, having an ERPO (Extreme Risk Protection Order) process could be an important tool in helping us address firearm-related suicides in Wisconsin, and to intervene to get folks in crisis the help and treatment they need.”

Let that sink in for a moment. Three out of every four gun-related deaths in Wisconsin are suicides. That’s a tragedy, but hardly a crisis. Even if it were, removing guns from law-abiding citizens without due process won’t prevent people from taking their own lives.

As a state representative, I watched my colleagues propose legislation to greatly expand the power of government. Bills that granted administrative subpoena power to partisan prosecutors even though judges are available to issue subpoenas 24 hours a day, seven days a week. Bills that turn parents into criminals for failing to prevent any potential danger their child might encounter. Bills that essentially eliminate the presumption of innocence from those accused of a crime.

Like Evers’ red flag bill, these bills substantially impact the rights of Wisconsin citizens, but don’t actually address the problem or alleged crisis at hand. It’s part of the “somebody has to do something” mentality that flourishes in the world of Twitter and cable news.

It’s time to remind our leaders that their job is to protect our most basic rights, not compromise our freedom in response to the latest crisis.

Adam Jarchow serves as president of Empower Wisconsin. The small business owner, attorney and volunteer firefighter is a former Republican state representative in the Legislature, where he was a leader on property rights, home affordability, and hunting rights. He authored the “Homeowners’ Bill of Rights’ — a package of bills aimed at expanding property rights and helping make home ownership more affordable.

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