Red States Not 'Bout To Let You Snatch A Fella's Guns Away Just 'Cause He Offered To Shoot Some Folks

'Due process', Texas? About that.

One of the few provisions in the Senate gun bill that would actually do anything to prevent mass shootings is the funding of red flag laws in states that choose to have them, with the hope of encouraging those that don't to get some. Alas, even if that goes through, it is highly unlikely that Texas will be implementing their own — despite the fact that 75 percent of Texans would like that.

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The Texas Tribune reports this morning that Texas Republicans are "balking" at the idea. If we were conspiracy theorists we might suggest that perhaps the reason for said "balking" is that such a law might deprive them of future executions. After all, if there is anything pro-life Texans love more than their guns, more than ensuring that people who appear to be a danger to themselves or others have access to as many AR-15s as their wee hearts desire, it is executing people.

“Anything that eliminates due process we will be fighting tooth and nail against,” Andi Turner, legislative director of the Texas State Rifle Association told the Tribune .

At the Texas GOP convention last weekend, delegates passed a resolution stating that these laws “violate one’s right to due process and are a pre-crime punishment of people not adjudicated guilty.”

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First of all, as with anything in our criminal justice system, red flag laws could indeed be used in a way that violates due process. If for some reason a state decided that all someone needed to do in order for one to be granted was to call up police and request it, that would certainly violate due process. Fortunately, that is not actually how Extreme Risk Protection Orders work. First the police screen them and then a judge rules on them, and the person the ERPO is against is then allowed to make their case to the court. As long as those things occur, it is not a violation of due process. Anyone who has tried to get an Order of Protection or a restraining order can tell you these things are not handed out willy nilly.

That being said ... is Texas really all that big on due process? The state currently has a man on Death Row whose lawyer literally slept through his trial , and who was convicted almost entirely on the statement of one eyewitness and the state won't grant him an appeal. Why? Because really, who is to say a lawyer can't provide an adequate defense while taking a nap? And this is not even the first time this exact scenario happened in the state (though to be fair, the defendant in the previous case was eventually freed ).

In 2020, the US Supreme Court found that because Terence Andrus's lawyer failed to introduce a "tidal wave" of exonerating evidence, his death sentence ought to be vacated. Texas decided to just go ahead and ignore that ruling entirely, keeping Andrus on Death Row, and just last week, the now extremely conservative United States Supreme Court reversed its previous ruling and decided that was just fine. That doesn't mean Andrus's rights to due process were not violated, it just means that Texas and the US Supreme Court have decided they don't care.

Death Row inmate Ray Freeney will be executed in Texas despite the fact that a judge ruled for the prosecution and signed her name to their brief two days before the defense submitted their legal arguments and new evidence.

And let us not forget the wrongfully executed Cameron Todd Willingham .

That's not even the only way due process is frequently violated in Texas. There is also the Failure to Appear/Failure to Pay program in which the state strips people of their driver's licenses for failure to appear in court or pay fines, regardless of their financial ability to do so. So they're more more than happy to take away someone's driver's license and ability to earn a living because they can't pay a fine, but taking their guns away because they're walking around talking about how much they'd like to murder people would be a step too far?

Then there is the state's fancy new anti-abortion law that allows Texans to sue anybody, regardless of what state they live in, who participated in "facilitating" an abortion — whether through funding, advice, transportation, or anything else they can come up with. That's not too great for due process either. 

Texas is, of course, not the only state that will likely oppose red flag laws while simultaneously being terrible about due process. In his continued efforts to fully clear his name, Damien Echols of the West Memphis Three has recently requested that the state of Arkansas test DNA found at the scene with new technology previously unavailable, but prosecutor Keith Chrestman wants to deny him the ability to do that because someone else's DNA being there would not mean that Echols wasn't there as well. This is a familiar refrain among judges and prosecutors unwilling to set people free after it turns out they are not a match for DNA found on the scene.

I'm sorry — I find it very difficult to believe that people who have no particular compunctions about incarcerating or executing those who are innocent or who have had their constitutional rights trampled on, or taking away someone's ability to earn a living because they can't afford to pay a fine, or who are totally fine with the grotesque abortion laws, are opposed to red flag laws because they care so very deeply about "due process." If you only care about due process being violated as it concerns your own pet issue, then it's not really "due process" you care about. That is why, despite my opposition to guns, I would oppose any law I believed violated anyone's constitutional right to due process.

If this were about "due process" and not simply the desire to pretend that guns have nothing to do with mass shootings (or successful suicides), those ringing that bell would not only be able to explain how they do that, but would also be open to discussing ways to ensure that they don't — by instituting objective criteria and ensuring people have the right and ability to challenge Extreme Risk Protection Orders. One way to do that is increased funding, particularly that which is directed towards training law enforcement officers in the execution of these laws.

But it's not. It is absolutely about wanting to remove guns from the "mass shooting" conversation. It's about their belief that any regulation on guns, whatsoever, is categorically wrong. And they've got a friend in the Supreme Court.

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