Unconstitutional ‘Red Flag’ Laws Won’t Make Us Safer
While the desire to do something to prevent mass shootings is admirable, these laws are certain to do more harm than good.
We all want to put an end to mass shootings. But debate is raging over just how to prevent them. Many people, including President Trump, believe so-called Red Flag Laws can prevent these tragedies.
Over at National Review, David French recently echoed the president’s call for Red Flag Laws. While the desire to do something to prevent mass shootings is admirable, these laws are certain to do more harm than good.
First and foremost, let’s call these laws what they are. These are not “Red Flag Laws” or “Extreme Risk Protection Orders” (ERPOs), they would more accurately be called “firearm seizure laws.” The idea behind these laws is to take firearms out of the hands of people who might present some form of danger to themselves or others.
Seventeen states and Washington D.C. have already passed these laws in one form or another. And they are already being put to use. For example, Florida has reportedly confiscated firearms from 2,000 residents and issued a significant number of ERPOs against children.
These laws, however, are incredibly problematic.
The first problem is that the orders lack necessary due process protections. They authorize the government to take, at gunpoint, a citizen’s natural and fundamental right to defend himself or herself, and to defend his or her family and property. This is a right, mind you, specifically reserved to the people by the Framers of our Bill of Rights.
In his defense of Red Flag laws, French rightly concludes that almost all current gun control laws are ineffective. We have no evidence that firearm seizure orders would be effective either—a point French conceded. Still, his justification was this:
If properly drafted, such laws do, however, provide the public with a vital tool that can cover the gaps left between a healthy criminal-prosecution regime and a woefully inadequate mental-health-adjudication process.
But let’s make sure the medicine we prescribe actually fits the sickness. If the problem really is the “woefully inadequate mental-health-adjudication process,” why not focus on solving that problem, rather than giving the government license to deprive citizens of their natural and fundamental rights without due process? Americans should not be left defenseless and without due process.
A short time later, French wrote about clear and fair criticisms of law enforcement officers. He has also criticized American law enforcement’s willingness to resort too quickly to deadly force. Yet, he appears willing to give those same police a tremendous amount of power to seize private citizens firearms without due process of law.
What happens if officers knock on the wrong door to enforce a firearm seizure order and meet an uncooperative citizen who is being wrongly harassed? What might happen when officers go to enforce a red flag order that was improperly granted because there was such a low standard of evidence required to get the seizure in the first place?
By tossing aside due process, we are likely to put more officers and citizens in harm’s way.
In a September 2018 article, French wrote that believes a “pro-police bias has infected our criminal justice system — including the way juries decide cases.” If it’s true that our criminal justice system has a pro-police bias, would it be wise to endow the police with even more power to break into citizen’s homes and seize firearms? Would it be wise to force potentially violent confrontation with citizens who may have broken no laws? Imagine the potential for wrongful shootings when officers, understandably on edge, are sent to raid homes where they expect a citizen to be armed and possibly mentally unstable or violent.
With a low evidentiary standard and a pro-police bias in the courts, ERPOs are far too easy to get and will certainly be abused. The chances of these laws preventing violence are low, and there is a significant and genuine risk that they will lead to unnecessary violence.
But the concern with Red Flag Laws does not end at the lack of due process.
Recent off-the-cuff remarks illustrated their further potential for abuse. In August 2019, President Trump tweeted: “Would Chris Cuomo be given a Red Flag for his recent rant? Filthy language and a total loss of control. He shouldn’t be allowed to have any weapon. He’s nuts!”
Many of the president’s supporters laughed the tweet off as a joke. Even if it was a joke, it exposed a genuine flaw of Red Flag Laws—they can be easily abused to settle a grudge.
Not to be outdone, former Democratic presidential candidate, Rep. Eric Swalwell, made a similar attack on conservative commentator Ben Shapiro. Swalwell tweeted, “Please tell me this lunatic does not own a gun. Reason 1,578 America needs red flag laws.”
Those two tweets prove exactly why Red Flag Laws should be rejected. They can and will be exploited to settle personal or political scores, by people on both sides of the aisle.
These laws should terrify people of all political persuasions.
When politicians and the government can target and disarm their political opponents, we all lose an important safeguard against tyranny. This is not the Republic our Founders and Framers fought and died for. In fact, it is exactly what they fought against. And we should fight against it as well. When the government creates for itself the means to disarm any member of society—removing your ability to defend yourself—it is engaging in a form of tyranny by violating our natural right to self-defense.
Sure, some states have restrictions on who can seek a firearm seizure order against a person. Some even set statutory limits on how quickly the court must allow the target to defend himself in court. But none of these limitations address the core of the problem with Red Flag Laws. As soon as these laws are passed, we have given the state the mechanism it needs to “legally” disarm citizens. Worse, the laws could easily be amended to weaken the requirements for seeking an order, or further diminishing due process protections.
What is clear is that regardless of those issues, once these laws are on the books, the states will not hesitate to use and abuse them.
If you look to states such as Connecticut and Indiana, which have had similar laws on the books for over a decade, there is one glaring problem. Those states suicide rates by firearms have decreased BUT both states overall suicide rates have increased. So instead of solving the problem of “a woefully inadequate mental-health-adjudication process,” the states have merely pushed their residents from one form of suicide to others. This is no solution.
Red Flag Laws also don’t address the issue of mass shootings. California passed the first form of its Red Flag Law in 2014. The law failed to prevent the 2015 terrorist shooting in San Bernardino, the Borderline Bar and Grill shooting in Thousand Oaks in 2018, or the Gilroy Garlic Festival shooting earlier this year.
Even if you ignore the legal and political issues with Red Flag Laws, they simply aren’t effective. Red Flag Laws are likely to be actively used against Americans in violation of our natural right to self-defense, our due process rights, or to pursue some sort of political or personal agenda. But the evidence shows they will not make us safer.
Cody J. Wisniewski (@TheWizardofLawz) is an attorney with Mountain States Legal Foundation. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.
Donations tax deductible
to the full extent allowed by law.
The potential for abuse is too great. Look at the fools who “doxx” and “SWAT” and flat out make up lies about people to “cancel” them.
“Red Flag Laws” are just another hammer in their totalitarian tool-belt.
Red Flag laws will be a powerful tool in the Left’s Lawfare Campaign to Rule America.
Red flag laws were created to dilute power licensed to the psychiatric community and transfer it to unqualified persons more obedient to democrats, e.g., local judges and crotchety old aunts. Due process requires reports from two psychiatrists, one from each side, legal representation, arraignment, indictment and trial by jury.
Nobody wants criminals to have firearms but to be taken seriously, if the accused is a danger to himself or others, he should be legally arrested. In other words, take the man but leave the guns. The natural line of inheritance will dictate who becomes custodian of the guns. Politicians on both sides who support this notion will regret the day they ever heard of red flag laws.
Their legacies will carry a Supreme Court scolding and perhaps be the landmark of their careers. Writers, politicians and demonstrators have been hoodwinked by Bloomberg’s rhetoric and haven’t read his 2018 data. It reveals gun homicides declined seven percent, firearm injuries declined 10 percent, fatal child shootings (under 18) declined 12 percent and unintentional shootings plummeted 21 percent.
None of this hysteria is justified. Since 1991, the murder rate has fallen by 45 percent and the overall violent crime rate has fallen by 48 percent. It’s bizarre that Bloomberg wants to change all that. Since 1999, the statistical probability of a student being killed in school, on any given day by a gun has been one in 614 million. Your odds of winning the lottery are 1 in 300 million. Bloomberg says the nation is in crisis, suffering an epidemic. Folks, there is no crisis, no epidemic.
Shooting incidents involving students have been declining since the ’90s. Fact is all but three mass shooters in recent history passed a background check. Two stole their rifles. The other one bought from a guy who assembled it from parts and sold it from home. Murders committed by all types of rifles combined, in 2018, dropped by 23.9 percent. According to the FBI, out of 14,123 homicides in 2018, only 297 (2.1%) were committed by rifles.
During that time, citizens were buying a record number of firearms. In 2018, more than 26 million firearms were purchased, a number exceeded only by 27.5 million in 2016 when purchasers were mortified that Hillary might be elected. Democrats want US citizens to believe making the U.S. safer for criminals will make it safer for their victims. Ask yourself, do you believe being disarmed makes you safer? What kind of political leader would disarm his people while howling about the peril they face?
These laws have not considered all the possible areas they might harm. For example, what if a crotchety old aunt complained about a blustery nephew who also is a Federal Firearms Licensee and established dealer? What if the nephew is a licensee who operates a pawn shop? What if the nephew stores a neighbor’s firearms because his safe is large enough? What about a nephew whose firearms are stored somewhere else? And so on.
The Supreme Court isn’t about to jeopardize its own reputation by reducing the ability of private citizens to defend themselves. It’s especially important because currently, half the nation’s murders occur in only 63 counties while the other half are spread across the other 3,081 counties. Said another way, 15 percent had one murder and 54 percent of the nation’s counties had no murders at all.
Besides, they’re sick of our paralyzed congress creating ambiguous laws that ultimately land in the Supreme Court. They know it’s easy to blame the tools used for murder and to write acts that impede acquisition by peaceable, lawful citizens.
They know it’s far more difficult to focus on the more complex reality of why incomprehensible murderers do what they do. If something is to be done, perhaps it should be focused on the mental defectives, criminals, terrorists and illegal aliens.
Why would they? They believe they will never be on the losing end of a red flag order, because they know judges and district attorneys protect their own (the government) much more than they protect ordinary citizens. That is in part why the pro-police bias is such a problem. Body-cam footage suddenly goes missing? You or I do that and we’re in jail pronto on obstruction of justice charges. The cops, not so much.
“if the accused is a danger to himself or others, he should be legally arrested”
Red Flag Laws are not designed to address known criminals who have allegedly committed crimes for which they should be “legally arrested” but rather people who are suspected of (or at least accused of) being potentially dangerous due to mental illness or being threatening or some other reason. There is already a mechanism in place (in most if not all states) to address this situation and that mechanism includes due process and an evaluation by mental health professionals: the Temporary Detention Order. This allows for a 72 hour hold (typically) to allow for an evaluation and then a hearing to determine if the individual should be civilly committed for continued treatment on an inpatient or outpatient basis. I have been on both the initiation and the evaluation ends of the process, and although not perfect, it is better than what is being proposed and what has been enacted in various jurisdictions.
The “Red Flag Law” provides no evaluation, no due process, no treatment and no consequences for false accusations in conjunction with divorce and/or child custody actions (as well as a number of other possible interpersonal conflicts). It is a “feel good” solution that is not a solution and that is asking to be abused.
The danger to law enforcement officers is also a concern as they will bear the brunt of the implementation of the law. Situations could result in the injury and/or death of officers and citizens, but that may be beyond the comprehension or concern of the proponents of these laws.
The 72-hour hold is not much better. In California, for example, you can lose gun rights for 5 years (permanently in 2020) even if you aren’t held beyond the 72 hour period.
At least the 72 hour hold provides for an evaluation and due process. In terms of California, yet another reason that I don’t live there.
I’m so old that I remember when “profiling” was intended to make the world a safer place. Then, it turned out that profiling was not a good thing because it identified a lot of red-flag sort of people who looked a lot like other people who were not red-flag looking sort of people.
So, that’s sort of the rub of it, discrimination is unlawful. Except, sometimes it is not unlawful, if it suits “special” circumstances.
I would never want to risk having any Governor of New York or New Jersey in possession of a firearm, let alone a California pol.
Does Eric Holder still have the same pistol he brandished while a student at Columbia University?
If ever there was a need for a red-flag law, Pelosi, Schiff, Schumer and the entire Congress make the case for special consideration.
Agree. But take solace in the fact that “profiling” is alive and well. Everyone “profiles” when choosing their friends, deciding where to live, those they will do business with, during (subconsciously of course) encounters while out in public , … Attorneys and judges “profile” when selecting (excluding) jury candidates. HR “professionals” “profile” when interviewing candidates for “fit with ‘our’ company’s culture”. …
SCOTUS has ruled numerous times that judicial action that ends a Constitutional right must do so with no less than “Clear and Convincing Evidence”….not some hearsay by an unvetted non-witness of a non-crime.
So you’ve got someone who is so dangerous, they must be immediately disarmed with zero due process. You send law enforcement to seize their firearms and now you’ve got a supremely pissed off “dangerous” person who is left to their own devices. No one seems to want to address that. If they’re so dangerous to themselves and others with a firearm, are they suddenly not going to be a threat with a knife or a vehicle or even a baseball bat? This isn’t about safety, it’s about laying the groundwork to justify confiscation of firearms on a trial basis.
Take Holder’s plan to “brainwash” people to hate guns (and fear those that own them). Now the already unhinged Left has the go ahead to purify the neighborhoods of evil firearms with the State’s permission. The Stasi would approve (as well as the preceding German security apparatus). Fear, irrational fear, is a great motivator for people who have no knowledge of firearms. As one anti-gun psychologist wrote.. “the trigger pulls the finger”. One more ban, more more “first step” and things will be better. Communal helplessness and weakness are the friends of tyranny.
“Many people, including President Trump, believe so-called Red Flag Laws can prevent these tragedies.”
Don’t confuse politics with belief. It should be rather clear that Trump doesn’t believe this.
Unlawful seizure of property
No consequence to accuser if allegation is unsupported
Rides the same line as police seizure of property to ” prevent profit ” from potentially illegally gotten gains…problem is there is no jury no arrest no conviction but police keep property….
Red flag laws will be the same
Confiscation without conviction
I suspect ERPOs are another manipulation of “uninformed individuals” to think well of themselves, i.e., it empowers the weak. … And, importantly it is intended to undermine “trust” in others, even those you know – family, neighbors, friends, acquaintances. Thus stifling open, frank, relaxed exchanges and conversations, let alone debate of controversial matters. … It’s the Nazi logic of neighbors watching neighbors, and an natural extension of “See something. Say something.” promoted since 9/11.
According to a prominent divorce lawyer, false claims of abuse are made in about 30% of divorce proceedings. These red flag confiscation laws are one more tool for an angry ex-spouse to use.
Law enforcement officers are the most vulnerable to these laws, because their job depends on being able to carry a gun. Here in our own Benton County, the duly elected Sheriff has had all his firearms seized because of a messy divorce.
Here are the details:
A restraining order in a divorce case is almost automatic in my town.
I used to think that “unconstitutional” meant “illegal”. I didn’t realize it just meant “Wait until we control Congress.”
Many more weapons resting now on lake bottoms, he explained. Many who own single weapons will now buy many more so they will have at least one (probably on a lake bottom) available after an unconstitutional search and seizure.
As the IRS assaulted the tea party, so did the FBI, DOJ, CIA and FISC attack the duly elected President of the United States.
False allegations will force citizens into using the weapons or losing them…
Red flag laws remind me of socialism. In theory they should work and, if “properly implemented”, they will be effective. However, if there is a lesson to be learned, like socialism, it is that these things are never “properly implemented”. What they do is serve as tools for the Left to seize the guns from those they wish for whatever reason. Should anyone hold an opinion counter to the liberals in charge, should they say something the Left disagrees with, etc., (and these may or may not have anything to do with potential violence) then the gun owner can be assured that their guns will be taken as a message to shut up and toe the line or else. Worse still is how the guns, once taken, are rarely returned without great effort and expense (ultimately being cheaper to procure new guns instead).
Socialism has been tried extensively and has failed every time and yet the Left continues to push hard for it. Red flag laws won’t work either, will not be effective, and will be used to abuse certain people by the Left, but this is a feature to them, not a problem. Like socialism, red flag laws will fail, will abuse the public, and will forever be supported by the Left, because, in theory they should work despite an abundance of evidence in the real world to the contrary.
Red Flag laws are a slap in the face of due process and should be scrapped the whole country over, for many of the reasons cited here in this article! I am hopeful that eventually many of them will be as more people become aware of the issue and those unfortunately targeted by these laws (rightfully or not) fight back to get their rights and property restored.
As to why government seems to favor RF laws and not fixing mental health, well a couple guesses:
1: Power – Government tries to accumulate as much as it can and once it has it is loathe to let it go.
2: Simple Laziness – Passing RF laws is the far easier approach for government right now rather than trying to fix mental health care in this country.
Are none of these state-level laws challenged in the courts yet? Surely they must be headed to the SCOTUS by now. I know I sure as hell am not giving a gun to anybody who comes knocking.
It’s not about removing guns from dangerous people. The tell is that known gang members and felons are not included. It’s about power and control.
Assault on Due Process. The Dems/Progs will use any tactic to advance their cause. Their goal is control. Everything, all the time.
They know how to live your life better than you.
We the People need to push a national “Open Carry” law.
Yes, we need to fight the out-of-control Red Flag laws, but that will take *time* to get through the courts.
Something that can be done stroke-of-the-pen right now would be for the Justice Department to establish a tight procedure for any firearm seizure that establishes ironclad rights of the property owner in taking, storing, and RETURNING. One thing the gun-grabbers like is to either auction off or destroy grabbed guns. Cut that off cold. Another thing they’re fond of is just tossing any grabbed gun into a big box and ‘losing’ it. Treble-damages at market collectors prices. They like to hang onto guns forever, and charge for storage. Fix it so the grabbing agency is fully responsible for all expenses involved in proper storage and unable to grab money from the property owner to get compensated. Seal up all of the little loopholes, establish the property is never to be retained by the State, etc…
Cutting off their incentive to grab should help a lot in preventing any of the greedy little cusses from selling their grabbing laws. Make it *cost* the State, and by Federal incorporation, enforce the same restrictions and rules on down the line.
Fight this on both ends.
The biggest problem with Red Flag Laws is that they are totally ineffective.
Red Flag Laws target a single instrument, the firearm, and ignore other weapons, including the most dangerous, the human being himself. Our society has been conditioned to view firearms a the only dangerous weapon available. While it is the most common, it is by far not the most dangerous or effective for inflicting mass casualties. The deadliest mass school killing in US history occurred in Bath, Mi in 1927. Dynamite was used. Then we had the Murrah Office Building attack, in 1885. Homemade ammonium nitrate explosive was used. In both cases, over 100 people were killed and many more injured. The Atlanta Olympics Bombing, in 1996 only resulted in 2 people killed, but over 100 were injured. And, that was an open air bombing venue. A firearm is only capable of inflicting injury to one, or two people at a time. And, becaue it requires multiple discherges to harm a significant number of people, there is ample time for an armed victim or defender to engage and neutralize the operator. An explosive device inflicts harm to a multitude of people in a single detonation. There is no chance to limit the damage done by such a weapon.
Now, there has never been a recorded case of a firearm leaving its place of storage and shooting a person, on its own. It only causes injury while being handled by a human being. So, even though a person’s firearms are seized, this only mitigated the potential threat. It does not eliminate it. The human being is still free to obtain a firearm through alternate channels; both legal and illegal, or use an alternate weapon, which may actually be more effective than the firearm.
The reason why mass shootings are as successful as they are, is because there is usually no effective defense at the point of attack. Even in states which allow licensed public carry of firearms, usually only 10% of the population obtain such a license and only about 5% actually carry a defensive firearm outside the home. In the kingdom of the unarmed, the armed man is king. And, in spite of this, most public venues, including schools, have no effective, or any, security in place to stop a shooter.
RFLs are nothing more than a sop to the public. They are passed, usually with much fanfare, as being a means to make the public safe. They are feel good legislation which provides a false sense of security. They are also wide open to abuse by both government entities and members of the public.
This will be known as the Ex-wife revenge process (AKA: I told him not to spend that much on a shotgun) act.
Anyone with a bottle of bleach and working kidneys can make a DIY chemical weapon (ammonium chloride gas). Where are the RFLs for cleaning supplies?