In a previous article, I wrote about the effects that have happened when countries have confiscated or banned private gun ownership. That article sparked comments on how such a thing could never happen in the U.S. But for years, there has been a movement to restrict private gun ownership. Granted, no outright ban has been enacted, and few if any politicians would try to propose such a draconian measure, but there have been moves at the edges of the Second Amendment that have taken hold.
Earlier this year, 97-year-old retired Supreme Court Justice John Paul Stevens created a firestorm when he called for the Second Amendment to be repealed. This was something that the anti-gun rights activists took as a signal that their cause was valid and had merit. Justice Stevens called for the repeal in the aftermath of the Marjory Stoneman Douglas High School mass shooting in Parkland, Florida. He said, “…the repeal was not impossible, but it is not easy. Circumstances and politics change. However, what does not change is the process of achieving real change, even the Second Amendment.” Justice Stevens described the Second Amendment as “a relic of the 18th century.” He said it would take more than rhetoric to remove such a relic in the 21st century. So even if the outright repeal of the Second Amendment would be next to impossible, other measures have been taken by many local and state governments.
On February 28, 2018, President Trump met with a bi-partisan Congressional group at the White House to discuss school and community safety in the wake of the Florida school shootings.
The suspected shooter, Nikolas Cruz, was able to legally purchase the AR-15 reportedly used in the shooting despite numerous calls to law enforcement about his unstable behavior.
During the meeting, Trump showed his support to confiscate guns without due process, even catching Vice President Mike Pence off guard. “Take the firearms first and then go to court,” said President Trump, arguing that waiting for legal procedures can take too long. “They have so many checks and balances that you can be mentally ill, and it takes you six months before you can prohibit it,” he said. “Number one, you can take the guns away immediately from people that you can judge easily are mentally ill, like this guy. The police saw that he was a problem, they didn’t take any guns away. I think they should have taken them away anyway, whether they had the right or not.”
Deputy Press Secretary Raj Shah confirmed the White House was looking at red-flag laws: “I think some states have had these red-flag laws, for example, that remove firearms after you go to a judge for potentially dangerous individuals. That’s something that’s being done right now in a variety of states, right? They have due process rights for these individuals. It seems to be working in certain areas. That’s something that we’re looking at and other places we’re looking at.”
The president’s comments have put new life into the effort to enact various state red-flag law initiatives. These are emergency risk procedures, and they certainly have merit. The issue is many are written in a knee-jerk environment and are not as well thought-out as they could be.
There have been more than a few citizens, legal gun owners with no criminal record and no violence in their background, that have come to be the subjects of the red-flag laws.
In a four-page school safety plan, Texas Governor Gregg Abbott wrote, “Properly designed emergency risk protective orders could identify that intent on violence from firearms, but in a way that preserves fundamental rights under the Second Amendment.” He added that such orders could have been used to prevent the shootings in Sutherland Springs and Parkland.
The concept behind the red-flag laws has a rational basis. Even the NRA is not opposed to correctly structured red- flag laws. It is when the red flag laws are poorly written or poorly enforced that they run into constitutional issues. So far, the use of these emergency protective orders or red flag laws has been somewhat limited and for the most part without incident…but there have been a few hiccups.
The main sticking point to most of these laws is the fact that someone could have their firearms taken away by the government just because of a threat, real or perceived, rather than an actual overt act of violence. This has many seeing a real threat to their Second Amendment rights. As many of the red-flag laws are now designed, all it takes is a complaint that a person is a threat or is acting strangely. This raises the possibility of their legally-owned and licensed firearms being forcibly confiscated without the owner even being able to defend his right to own or confront their accuser until after the fact. Many constitutional lawyers, as well as scholars, say this could be an abuse of due process.
In New York, under Governor Andrew Cuomo’s proposed red-flag law, teachers and school administrators would be able to file a petition asking a judge to order the removal of firearms from the student’s family home. This would allow a teacher to have all firearms removed even if those weapons were not accessible to the student. Facebook and other social media comments could be used by the school personnel to make the determination.
A new effort in Texas, authored by El Paso Democrat State Rep. Joe Moody (an operative in the Beto O’Rourke campaign), was written to allow any household member or a prosecuting attorney to file in court to confiscate a person’s firearms. The court could order all of the person’s firearms seized, without a hearing or notice to the accused. This effort of the red flag laws did not pass in Texas.
The Problems with Red-Flag Laws
One of the many issues is the ease in getting an emergency protective order. Firearms have been confiscated for many unrelated problems, such as a DWI which resulted in weapon confiscations. Weapons have also been confiscated from people exercising their First Amendment (free speech) rights only to have their Second Amendment rights arguably violated. Depending on the state, the laws vary and some allow employers, roommates, family, teachers, and of course law enforcement to request the protective orders.
Statistically, when law enforcement has requested the orders, there has typically been a good cause. It may be a threat to others, but often the threat is to the person themselves, as in prevention of a possible suicide. Other times, when non-practitioners get involved, the requests have been less specific. Nevertheless, the emergency protective order is almost always granted.
The following is a list of states currently exercising some version of the red-flag law: California, Connecticut, Indiana, Oregon, Washington, Delaware, Florida, Illinois, Maryland, Massachusetts, New Jersey, Rhode Island, and Vermont.
The march to enact the red-flag laws continues with the following states currently tooling some version of a red-flag law: Michigan, Ohio, and Texas.
States that have proposed red-flag laws but were unable to get them passed so far are: Alabama, Alaska, Arizona, Colorado, Hawaii, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Missouri, New York, North Carolina, Pennsylvania, Tennessee, and Utah.
What is striking is the number of states considering this very issue. It is more than a few outliers. The move to restrict gun ownership from citizens who legally possess firearms because of a non-adjudicated reason and without due process is real. Intended strictly for public safety or for a more ideological reason, this could put the Second Amendment rights of all Americans at risk.
If these red-flag laws are allowed to promulgate without the strict construction to protect the constitutional due process that we all depend upon, they put us on the path of the proverbial slippery slope that we cannot allow.