Criminal History Should Not Be Fair Game for Red Flag Laws | Opinion

Ex-convicts know the heavy weight of the past better than most. Most felons in the U.S., upon release from prison, find themselves stripped of many of the rights most Americans take for granted: the right to vote, the ability to serve on juries or travel outside the U.S. and the right to bear arms among them. In some cases, ex-convicts are denied the right to work by the many state occupational laws that deny job licenses to felons.

The ethics of stripping rights from individuals after they've paid their debt to society deserve attention anywhere, but especially in the U.S., which houses 25 percent of the world's prison population despite making up just five percent of the global population.

Moreover, minority groups are disproportionately likely to find themselves confined in America's prison system. According to the ACLU, one out of every three black males born today can expect to find himself in prison during his lifetime, as can one of every six Latino males—compared to just one of every 17 white male children. Women, meanwhile, represent the fastest-growing demographic subset in American prisons.

While many organizations are dedicated to restoring some rights for felons, new laws sweeping the U.S. stand to threaten the rights of other Americans who have had run-ins with the law.

"Red flag" laws (also known as risk-based gun removal laws) currently exist in 19 states, as well as the District of Columbia. While these laws differ from state to state, emerging evidence suggests people with criminal histories could be at risk of having their rights needlessly stripped away.

While red flag laws are designed to prevent "imminent" threats, a district court in Florida recently ruled that a target's criminal history is fair game. The case involved a litigant named Christopher Blintson, who argued that authorities had used impermissible evidence by citing incidents that occurred years ago to show he was an "immediate and present danger."

The court disagreed, stating Florida's relevant underlying statute "does not bar evidence of acts committed more than 12 months before" the risk protection order (RPO).

Statutory interpretation aside, proponents of civil liberties should ask if using past criminal acts and allegations to deprive citizens of constitutionally protected rights is prudent public policy.

Bear in mind that those targeted by RPOs are not being accused of any crime. They are having their property taken for something someone believes they could potentially do. As some have observed, this is similar to the "pre-crime" concept developed in Philip K. Dick's popular dystopian short story, "The Minority Report".

One needn't have a wild imagination to see how red flag laws could turn into a bureaucratic nightmare for thousands of Americans if authorities are allowed to scour their pasts for legal transgressions.

According to the FBI's definition of "criminal record," more than one-third of U.S. adults (73.5 million Americans) have one. That definition, however, rests primarily on felonies—both arrests and convictions. The figure is much higher when domestic incidents and other misdemeanors—a bar fight in college, that pot conviction a lifetime ago, the public intoxication arrest at homecoming and so forth—are included.

Since it's safe to say authorities will use any evidence they're allowed to present to execute an RPO, Americans and civil libertarians need to ask themselves important questions: Is giving the state the power to use past conduct to seize the property of individuals who have not been accused of crimes (let alone convicted of crimes) prudent public policy? Do criminal acts and allegations from years ago credibly show that someone is an "imminent" threat today?

Second Amendment supporter
Second Amendment supporter George Rose/Getty Images

The American author Nathaniel Hawthorne once wrote about the heavy weight of the past that "[i]t lies upon the Present like a giant's dead body," but it was a different 19th-century author who showed the power of redemption.

At the beginning of Victor Hugo's masterpiece Les Miserables, we learn that Jean Valjean spent 19 years in prison for stealing a loaf of bread. Prison, we see, had not reformed Valjean. When he arrives at a village hungry and tired, he commits another crime against the first man to show him kindness, an elderly bishop. However, it's an act of forgiveness from the bishop that transforms the criminal into a righteous man.

"Jean Valjean, my brother: you belong no longer to evil, but to good," the bishop tells him.

Absolution is a powerful thing. So is shame.

We should remember this when we consider the individual rights and basic liberties of the least among us. We should ask ourselves: Has their debt not been paid?

Jon Miltimore is managing editor of, the online portal of the Foundation for Economic Education.

The views expressed in this article are the writer's own.