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Minority Report: The Real Purpose of “Red Flag” Laws

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You’re one microscopic cog in his catastrophic plan … designed and directed by his red right hand.

In America, we don’t punish people for crimes they may commit in the future.

It’s true that America doesn’t have a gun problem; we have a violence problem. Some–not all–of that problem stems from poorly administered mental-health care. It’s tempting, in the wake of a tragedy like the one in Uvalde, Texas, to call for sweeping reforms that tackle that mental-health problem. Many of those programs will indeed help. What won’t help? The so-called “red flag laws” that pre-emptively and forcibly disarm citizens who have committed no crime. If you would like to know the real reason those “red flag” laws look so good to anti-gunners, we suggest you do some reading. Or some watching. There’s even a whole country where that’s already the law of the land. And none of them look anything like America. Today, the NRA’s Institute for Legislative Action explains.

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The NRA Opposes Laws to Judicially Nullify Second Amendment Rights

NRA Staff

As they unfailingly do, gun control proponents are using emotionally-charged moments of national tragedies to try to advance their pre-existing agenda to ban firearm ownership, or some portion of it, in whatever ways they can. Reports indicate that the leading proposals being considered by Congress concern what is commonly called “red flag” or “extreme risk protection order” legislation. The real purpose of these laws, however, is simply to empower judges to nullify Second Amendment rights with the stroke of a pen.

The NRA opposes any such effort.

Judicial nullification – or “red flag” – laws presuppose judges can determine who will act out in dangerous and unlawful ways ahead of time and issues decrees to prevent this from happening.

Both premises are flawed.

Judges – like anyone else – cannot predict the future.

There is simply no accurate, consistent, or scientifically valid way to determine who – among those who have not already behaved violently – will become violent at a future time. The RAND Corporation, in an exhaustive survey of existing gun control research, underscored this point in the context of mass shootings, in particular:

The nature of mass shootings creates serious challenges for developing policies that will effectively prevent their occurrence. For instance, their rarity makes it difficult to extract generalizable information to identify useful predictors of risk. The low base rates of these events also ensure that policies targeting individuals based on risk factors would result in an extremely high rate of false positives; even the best available risk factors can identify only a subpopulation in which the risk of committing a mass shooting is on the order of one in a million.

Moreover, the link between violence and mental illness has also been commonly overstated and misunderstood.

Even if it were possible to accurately predict future dangerousness, simply depriving an individual of the right to possess or receive firearms, without addressing the underlying causes of the person’s dangerousness or instability, cannot prevent bad outcomes. A desperate, dangerous, or unstable person left to his or her own devices can still cause harm to self or others, including with illegally acquired firearms.

Another flawed premise of these laws is that it is even practical or possible to know who has firearms and where they are, much less to seize and confiscate all of them even from a single individual. America, rightly, does not have a comprehensive registry of firearms and owners. Most states do not either. This is by design, indeed to protect the constitutional right to keep and bear arms and to prevent oppressive schemes at large-scale firearm confiscation. Some people who own many guns store them at multiple locations. It might be difficult or impossible to surrender a large and diffuse collection of firearms in the timeframe required by typical “red flag” legislation. But many people likely would not cooperate. And authorities would have no practical way of forcing them. Requiring people to make sworn declarations about firearm possession, moreover, raises other constitutional issues, including against the right to compulsory self-incrimination.

Unsurprisingly, the RAND Corp. survey was unable to substantiate any positive benefits of these types of so-called “red flag” laws, including on reducing suicide, mass shootings, officer-involved shootings, unintentional injuries and deaths, and violent crime.

But even if these laws had some evidence of success, they would still unacceptably fly in the face of due process, the presumption of innocence, and fundamental fairness. America’s constitutional and legal orders are premised on defining what the government can do and circumscribing its ability to intrude on fundamental rights. These laws fail in this respect as well.

As currently proposed in Congress and as enacted in the states, these laws trample on individual rights.

They allow judges to issue temporary nullification orders without giving the accused individual the opportunity to respond to the accusations. The first time many affected persons will know of the allegations against them is when law enforcement officers come to serve the orders and seize their guns. And even if the person later has an opportunity to tell his or her side of the story at a hearing, the damage to the person’s rights is done the moment the guns are removed. The value of a gun, particularly for the core constitutional right of armed self-defense, is completely obliterated if the gun is not available when needed and to provide peace of mind in the meantime.

To the extent the person has a right to judicial process, the laws typically allow for adverse actions under very low standards of proof, such as “reasonable suspicion,” “probable cause,” or “preponderance of the evidence.” This is in contrast to laws that prohibit firearm possession after a criminal conviction, which the state must establish by proof “beyond a reasonable doubt,” or after a civil commitment, which requires “clear and convincing evidence.”

Some laws or proposed laws do use the more stringent standard of “clear and convincing evidence” when it comes to the proof necessary to sustain a lengthy deprivation measured in months. But why would it ever be preferable simply to seize a demonstrably dangerous person’s guns, when it would be possible on the same proof to have the person taken into custody, incapacitated from acting out, and given treatment or services to address the underlying problems? This makes sense only if the real goal is simply eliminating firearm ownership, rather than actually improving individual well-being and public safety.

The lengthy deprivations authorized under the laws – months and in some cases up to a year – also obviate any requirement of imminence in the purported danger. Some allow for renewals of orders, even in the absence of a violation. Continued deprivations of civil liberties, on purely speculative harms, even after the individual has actually proven to be non-dangerous for months, raise obvious and chilling concerns.

“Red flag” laws also create danger for the individuals whose rights are affected and the officers tasked with executing the orders and seizing lawfully owned guns. In Maryland, for example, a citizen with no criminal history or outstanding charges was killed by police when officers attempted to served an order and seize the person’s lawfully owned gun. A relative would later tell the Baltimore Sun, “I’m just dumbfounded right now … My uncle wouldn’t hurt anybody.”

Even a state chapter of the American Civil Liberties Union – an organization which despite its name does not generally oppose and sometimes even supports gun control – wrote a lengthy analysis raising serious concerns about the civil liberties implications of red flag legislation then pending in Rhode Island. Many issues the analysis identified are common to the pending federal legislation and existing state laws. For example:

  • “The court order authorized by this legislation could be issued without any indication that the person poses an imminent threat to others.”
  • “The order could be issued without any evidence that the person ever committed, or has even threatened to commit, an act of violence with a firearm.”
  • “The standard for seeking and issuing an order is so broad it could routinely be used against people who engage in ‘overblown political rhetoric’ on social media … .”
  • “The heart of the legislation’s ERPO process requires speculation – on the part of both the petitioner and judges – about an individual’s risk of possible violence. But psychiatry and the medical sciences have not succeeded in this realm, and there is no basis for believing courts will do any better.”

Hindsight is 20/20. And it often seems after the fact that it should have been obvious that someone was headed for a violent episode. But most of the supposedly telltale “red flags” of impending violence are exceedingly common occurrences that never result in any violent behavior. Many people are loners. Many people are victims of bullying or ostracism. Many people drink or use drugs to excess. Many people experience setbacks at school, at work, and in relationships. Many people have an interest in firearms and true crime. Many people use bellicose, sinister, vague, or overheated language online or in other public forums. And the list continues. Routinely involving the police in these situations is not only unconstitutional, it is unproductive and not part of their mission to protect the public.

Indeed, these laws allow not just speculation but outright prejudice, bias, ignorance, inexperience, malice, and resentment to influence the rights, reputation, and safety of innocent people. In the absence of reliable scientific metrics, these factors are just as likely to influence the reasons these orders are sought and issued as anything else.

Gun owners need look no further than the overheated rhetoric heaped on them and their advocates whenever a deranged individual commits an atrocious crime with a gun. The NRA, for example, has been labeled a “terrorist organization” by (among others) the San Francisco board of supervisors and the current New York attorney generalEditorialists frequently accuse the NRA of having “blood on its hands.” And members of Congress, sworn to uphold the Constitution, even attack their colleagues for standing by the Second Amendment, with one recently accusing another of being a “baby killer” for supporting the right to keep and bear arms. Given these inclinations, and the increasingly divisive and corrosive tone of politics and public debates, these laws are ripe for abuse.

The NRA will fight any attempt to treat the Second Amendment as a second-class, disfavored right. This includes gun control disguised as so-called “red flag” legislation, which itself is a harbinger of bad things to come in the form of increasingly restrictive and totalitarian gun control.

16 Comments

16 Comments

  1. Anyone But Bib

    June 8, 2022 at 11:17 am

    All these comments against “Red-Flag Laws” are vary valid and logical arguments and I totally agree 100% except for “Bob” (comment above). He is a idiot calling all people “communist” if they don’t see things the same way as he does. “Bob” is a perfect example why the political “left” think many gun owners are crazy and pose a danger to society. People like “Bob” (above) do a disservice to protecting our 2nd Amendment Rights!

    • Clark Kent

      June 12, 2022 at 2:43 pm

      The truth hurts. Get over it.

  2. Doug Smith

    June 6, 2022 at 1:10 pm

    We don’t see mass shootings at Banks. Anyone can ponder that for 5 seconds and conclude that armed officers at all schools will stop the nonsense.
    Of course 2000 people ( including children) die every day from cancer but that doesn’t phase the FDA enough to stop allowing carcinogenic ingredients into our food supply does it.
    Bottom line is this: Anything left to the responsibility of our government is flawed from the start. and always will be. Any representative of the people assuming they know best is no longer a representative of the people.

    • Clark Kent

      June 12, 2022 at 2:44 pm

      Kids should not smoke.

  3. Bob

    June 6, 2022 at 12:51 pm

    When one member of congress accused another member of congress that supports the second amendment as a baby killer this member of congress is a communist. The same way hippies in the 70’s that were communist that spit on returning soldiers from Vietnam.

    • Julie Rodriguez

      June 20, 2022 at 11:54 am

      My uncle killed himself after returning from Vietnam,when he got off the bus those hippies were throwing red paint on him and called him a murderer,threw rocks and stalked him for days,one of the hippies is now a Congress woman from California, I was 16 when these people would follow us everywhere,I still remember her face

      • william wilkins

        June 22, 2022 at 1:21 pm

        I beat the stuffing out of a few of them, at the airport in iowa. Went to pickup my friend returning from nam. Yep spitting and calling him baby killer.Good old days.

  4. Work At Home

    June 6, 2022 at 12:37 pm

    Hey Guys, I know you read many news comments and posts to earn money online jobs. Some people don’t know how to earn money and are saying to fake it. You trust me. I just started this 4 weeks ago. I’ve got my FIRST check total of $850, pretty cool. I hope you tried it. You don’t need to invest anything. Just click and open the page to click the first statement and check jobs…. Visit Work AT Home

    • Bob

      June 6, 2022 at 12:53 pm

      Who cares about your fake work at home site

  5. POPS

    June 6, 2022 at 12:00 pm

    McConnell & his supporters will join Pelosi & Obama.

    • James Richards

      June 6, 2022 at 11:30 pm

      Without Due Process Anyone coming to Take Your Property (Firearms) is Nothing More than a Home Invader(s), and Should be Delt with as such! Police Officers should Refuse to Serve these Orders, but if They don’t They are Fair Game!

      • Clark Kent

        June 12, 2022 at 2:44 pm

        Like a game of Chutes and Ladders?

  6. Harry

    June 6, 2022 at 11:28 am

    If an individual who has never been accused or charged with any crime takes any motor vehicle whither owned, stolen or rented and intentionally/deliberately in right mind chooses to plow/run into a crowd of humans to cause bodily harm or death is captured and detained; the person who did so is the accused perpetrator is who is the root cause of the incident. Not the manufacturer/dealer/seller of the vehicle used to commit the crime against society.

    If same individual was charged for an accused crime using a firearm; it’s now the burden of the firearm used; manufacturer/ dealer/ seller of used firearm. human usually gets a light sentence.

    What’s wrong here? The vehicle needs a operator, the firearm needs to be loaded, aimed at chosen target and willfully discharged by the human holding the firearm. The root cause is??????????????

    Common sense through out!!!!!!!!!!!!!!!!!!!!!!!!!!!

  7. Rat Wrangler

    June 6, 2022 at 10:54 am

    This article states that “the real purpose of these laws, however, is simply to empower judges to nullify Second Amendment rights with the stroke of a pen.” Unfortunately, the author seems to be unaware that judges have had that power before. A man charged with a violent crime can be temporarily released on bond, but the particulars of that bond may prohibit him from carrying or purchasing a firearm. We all know that convicted criminals cannot carry, as determined by a judge’s stroke of a pen. I’ve read the “red flag” laws, and all of them require that a judge review presented evidence before he makes a ruling, rather than nullifying someone’s rights on a whim.

    • GomeznSA

      June 6, 2022 at 12:27 pm

      Rat – you do know that the man from Maryland killed by coppers serving the ERPO (at oh dark thirty) was ‘called out’ by another relative who was mad at him for some ridiculous disagreement. The ‘judge’ who issued that order did so solely on the say so of that angry relative with NO corroboration. Doesn’t sound like he did a proper “review presented evidence” to me but ianal.
      Bottom line – unless there are stringent procedures in place those red flag regs can and will be abused. Remember the elderly couple who got raided by an all out SWAT team after they were doxxed a while back, that could easily have resulted in a tragedy – all based on faulty info. Then there was the couple killed in Houston based on an illegally obtained warrant. I could go on but I think the point has been made.

    • Clark Kent

      June 12, 2022 at 2:47 pm

      You are missing the point, bub. You are NOT ALLOWED TO BE PRESENT when the judge hears accusations against you. Thus no due process.

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