Former U.S. Attorney for Colorado weighs in on constitutionality of the Red Flag Bill

Tuesday, Cañon City declared itself a sanctuary city for second amendment rights, and now Pueblo City Councilman, Mark Aliff said he’ll introduce a similar measure for the Steel City.

Both actions, have been in response to the Extreme Risk Protection Order bill, better known as the Red Flag Bill. As they, and several counties, including El Paso County, believe it violates people’s rights.

“My job is not to decide if a law is unconstitutional or not. I suspect there are unconstitutional pieces of this legislation,” Sheriff Bill Elder said.

But former U.S. Attorney for Colorado John Walsh, who testified in support of the bill, believes it is constitutional.

Walsh, a Democrat, was nominated to the position by former President Obama but now practices law in the private sector.

“The fact that there are 13 other states with laws that are very similar to this that are current and valid today is pretty good evidence of that,” Walsh said.

Regarding the Second Amendment, Walsh cites Justice Antonin Scalia’s opinion in the Heller case.

Scalia wrote the right to bear arms is not an unlimited one, and certain laws restricting gun ownership are constitutional, like those dealing with mental illness.

“From the point of view of the Second Amendment, if you listen to Justice Scalia’s opinion, it’s clear that this bill complies,” Walsh said.

Elder adds though, people’s Second Amendment rights are just as important as their rights to due process.

Under HB 19-1177, the person whose firearms are targeted, would not be present at the first court hearing.

“If a family member goes and sees the court I’m going to try and ask the judge to highly consider the fact that we need to bring professionals in, and I would encourage the judge to speak the defendant, the accused,” Elder said.

Walsh said an ex parte hearing is not unique to extreme risk protection orders. He said it’s similar to how law enforcement gets a search warrant and similar in domestic violence restraining order cases as well.

“It is completely constitutional and consistent with due process to have those hearings if they are limited and if the person has an opportunity to defend themselves within a short period of time,” Walsh said.

Should the bill become law it can be challenged, then the decision on constitutionality resides with the court.

The Senate Appropriations Committee passed the bill six to four Tuesday. That vote now sends it to the Senate floor.

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