Why ‘Red Flag’ Gun Confiscation Orders are NOT a Constitutional Option
Why ‘Red Flag’ Gun Confiscation Orders are NOT a Constitutional Option
Recently, a document has been circulating from the Heritage Foundation, which purports to analyze “red flag” Gun Confiscation Orders. (See “Answers to Common Questions About ‘Red Flag’ Gun Laws,” August 16, 2019.)
We have read, analyzed, and fought about 40 of these bills around the country. Sadly, not only does the Heritage Foundation appear not to have analyzed those bills, this recent paper appears to be nothing but a recitation of Bloomberg/Gifford’s talking points.
The first problem is Heritage’s failure to acknowledge that the “red flag” template was drafted by the gun control lobby (see David Kopel testimony before the Senate Judiciary Committee). It is one of the gun control lobby’s two chief priorities.
In most of the states where it has been seriously proposed, it was fought by the whole pro-gun movement, including GOA and NRA.
And Second Amendment opponents intend for “red flag” laws to be the battering ram to open the door to comprehensive gun control in red states.
So in no jurisdiction where the U.S. Constitution is applicable should “red flag” laws ever be entertained as a “conservative” option.
Interestingly, Thomas Jipping of the Heritage Foundation penned a very thorough critique of the Violence Against Women Act (VAWA) in July. And one of Jipping’s chief criticisms was the inclusion of a red flag-style provision in VAWA. Says Jipping:
[VAWA] creates, for the first time, the possibility of losing one’s constitutional right to possess a firearm and the potential for up to a decade in prison by a court order issued without the individual’s knowledge or the opportunity to contest it. This very serious compromise in application of the Second and Fifth Amendments would be accomplished by legislation passed through an orchestrated process with virtually no consideration.
The problem that Jipping is describing here is the problem with “red flag” Gun Confiscation Orders across the country. Unfortunately, the more recent “Answers to Common Questions” article from the Heritage Foundation seems to gloss over these serious violations of Due Process rights.
What follows is GOA’s response to the Top Ten most egregious statements made by the Heritage Foundation in their attempt to justify “red flag” Gun Confiscation Orders, as most recently seen in their “Answers” article.
GOA’s Top Ten Answers on ‘Red Flag’ Laws
- Heritage Foundation: “Unlike other commonly proposed gun control measures, red-flag laws could have been used to prevent many high-profile mass public shootings without broadly infringing on the rights of all lawful gun owners.”
The first part of this statement — that “red flags” could have been preventative — is simply unprovable. No one can prove what would or would not have happened when a teenager makes a remark on social media.
California, which has one of the oldest and broadest “red flag” gun confiscation laws, has more mass shootings than any state in the country. Connecticut’s “red flag” Gun Confiscation Order (GCO) law did not prevent the Newtown shooting.
The second part of the Heritage statement above — that “red flag” laws don’t infringe on gun owners’ rights — is absolutely wrong.
Just ask Gary Willis, the 60-year-old African-American gentleman who found out that a gun owner may not survive the enforcement of a “red flag” Gun Confiscation Order. After a family argument, a relative filed a false “red flag” claim against Willis to get revenge against him. When police showed up at 5:17 am to confiscate his guns, Willis was shot to death after answering the door with a gun in his hand.
Only in an Orwellian universe can taking away constitutional rights on the basis of an ex parte order be viewed as not “broadly infringing on our rights.”
- Heritage Foundation: “[N]ot all mass public shooters have a diagnosable mental illness, and therefore can’t be disarmed through civil commitment procedures.”
This is misleading. All over the country, states are responding to threats by arresting individuals for “menacing” or “criminal threatening.”
Since the El Paso and Dayton shootings, almost 30 people have been arrested for threatening to commit mass attacks.
Incidentally, virtually all mass shooters are drug users — which is also a “prohibited persons” category under 18 U.S.C. 922(g)(c). And yet in no case is any state making an effort to put drug users on the NICS list or to refer them for prosecution.
- Heritage Foundation: “[T]here’s a gap in existing laws where objectively dangerous people are still permitted to lawfully purchase and possess guns because they have not yet reached a mental health crisis or committed an atrocity. Part of the problem is that civil commitments are a legally intensive process with serious (and often lifelong) implications for the person being committed. They are, therefore, often reserved as a last resort when all else has failed.”
If people are truly “objectively dangerous,” then there are already existing laws which allow authorities to deal with them — as evidenced by almost 30 people who have been arrested in the days following then El Paso and Dayton shootings.
But it is dangerous to suggest that a “legally intensive process” before stripping a person of his constitutional rights is a “problem.”
Only in the world of Tom Cruise’s Minority Report would someone downplay Due Process protections and argue for arresting people before they can be “objectively” determined to be dangerous.
- Heritage Foundation: “Red flag laws can provide an intermediate ‘gap-filler’ option for situations where someone is clearly becoming a serious threat to himself or the public, but has not yet committed a serious crime or falls outside the scope of existing laws.”
If it were “clear” who would or would not be a mass shooter, this would be less of a problem.
It’s not. The Parkland, Florida gunman was visited three dozen times by police. At any point, they could have taken his guns away under current law. But they didn’t.
Nor would the Dayton, Ohio shooter have lost his guns based on conduct prior to 2013 as a juvenile. In fact, GOA has not heard of a single mass shooting which could have been actually stopped by a GCO, as opposed to after the fact “shoulda-coulda” thinking.
- Heritage Foundation: “Similarly, red flag laws could have prevented the Parkland, Florida, shooting by allowing the family with whom the shooter was staying to petition a court for disarmament after local law enforcement and school officials refused to take action, despite repeated indications that the shooter was dangerous.”
Again, the Parkland shooter could have been arrested under then-current law for criminal threatening. Given that he was visited three dozen times by police, authorities could have taken his guns away at any point.
Each time, however, the family defended the murderer’s emotional state to authorities during the dozens of times he was investigated prior to the shooting. So given the family’s defense of this troubled youth, why would anyone think they would have reported him to police under a “red flag” law?
“Arresting the guns” versus “arresting the perpetrators.” The former still leaves the bad guy on the street where he can steal weapons to commit his crime. This is exactly what the Sandy Hook shooter did. And it’s exactly what an Illinois man did this month — police confiscated his guns, but then he simply used a samurai sword to kill his mother.
The latter approach — which involves arresting the perpetrators — has been applied almost 30 times since the El Paso and Dayton shootings as can be seen here and here. It is the only way to make sure that the person who is threatening to carry out a mass killing is prevented from doing so.
- Heritage Foundation: “Like all other enumerated rights, however, the right to keep and bear arms is not unlimited. No one would seriously suggest that violent criminals maintain a Second Amendment right while serving their sentence of imprisonment, or that individuals involuntarily committed to psychiatric facilities must be permitted to keep firearms in their hospital rooms.”
This is what Michael Bloomberg and his gun control organizations have argued. But, notwithstanding p. 54 of the Heller decision (2008) — which was inserted to get Anthony Kennedy’s vote — it is far from clear that the courts will minimalize the Second Amendment through a “balancing test.”
But this line of argumentation is the hallmark of those who favor infringements upon Second Amendment-protected rights.
- Heritage Foundation: “[T]he parents of the man who killed six people and wounded 13 in Tucson, Arizona, in 2011 were so worried about his mental health, they disabled his car and tried to hide his firearms. They tried unsuccessfully to get him mental health treatment.”
Jared Loughner walked into an Army recruiting station and confessed he was a pot head. Under federal law, his guns could have been taken away from him for life, then and there.
- Heritage Foundation: “What makes a good red-flag law? Laws that restrict an individual’s right to keep and bear arms, even temporarily, must follow some important guidelines.”
It really doesn’t matter what “could” be a good bill — although stripping a person of their constitutional rights on the basis of a subjective standard is always bad.
The Graham-Blumenthal bill is expected to fund state Gun Confiscation Orders. And EVERY SINGLE law currently on the books eviscerates due process.
There is a reason for this: All of them come from the gun control movement.
- Heritage Foundation: “These laws have become increasingly popular since the February 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, even though the first such law was enacted by Connecticut in 1999. Today, 17 states plus the District of Columbia have passed some form of red flag legislation.”
GCO’s are “increasingly popular” only in certain areas. Except for Florida, in which students near-rioted in Tallahassee, EVERY post-Parkland GCO state has been DARK BLUE.
- Heritage Foundation: “The specifics of red flag laws vary by jurisdiction, and no two red flag laws are identical. As a general rule, these laws allow non-state actors (family members, teachers, etc.) to request that a hearing be held on whether someone close to them should have his or her right to possess firearms temporarily revoked because he or she is an extreme risk of danger to self or others. Some states only allow those private individuals to ask law enforcement officers to investigate and file petitions with courts, while other states allow them to petition the courts directly.”
After Indiana and Vermont, the template with more recent states has been to allow angry relatives or vindictive “ex’s” to petition directly.
To be sure, not every Fed Flag Gun Confiscation law extends to “non-state” actors. (See e.g. Vermont). But every one of them empowers the state.
The “hearing” can be as little as a telephone call to a judge. In every case, the constitutional rights can be stripped without hearing the gun owner’s side of the story.
The “temporarily” suspended rights may be very difficult to recover, particularly if the gun owner is poor. Dave Kopel’s research reveals that at least one-third of “red flag” orders are issued erroneously, and a 2015 study found that gun owners will often wait over nine months to recover their firearms.