'Red-flag' gun laws

'Red-flag' gun laws are constitutional and sensible

BY ANDREW C. MCCARTHY, OPINION CONTRIBUTOR — 08/08/19 09:30 AM EDT 568

THE VIEWS EXPRESSED BY CONTRIBUTORS ARE THEIR OWN AND NOT THE VIEW OF THE HILL

 

In the wake of the latest mass-murder attacks by gunmen in El Paso and Dayton, so-called “red-flag” laws have come to the forefront of the public debate. Such laws would permit state governments, with federal encouragement, to deny firearms to people whom a judge finds solid grounds to believe may be unstable. 

Concerns that these laws would impinge on the right to lawful gun ownership are understandable but overblown.

I say that as a Second Amendment advocate. The rights of self-defense and self-determination are not given to us by the Constitution; they are natural rights that the Constitution safeguards. They are vital to liberty. Indeed, we can be confident that the Constitution would not have been adopted in the first place if the states and the people were not satisfied that the right to keep and bear arms was guaranteed. 

Nevertheless, no constitutional right is absolute. And many are highly qualified: On its face, for example, the First Amendment may appear to brook no congressional burdens on free expression; yet, that liberty has always been understood to be limited by laws against libel, profanity and incitement, as well as time, place and manner restrictions.

What the Constitution ensures is that our basic rights may not be denied by the government absent due process of law. The Constitution does not insulate our rights from all regulatory burdens, or from denial in all instances.

Sometimes, the due process burden on government is extraordinarily high. In criminal prosecutions, for example, in which the stakes include the extensive loss of our most precious rights to liberty and property (and, in capital cases, the right to life itself), the government must establish guilt beyond a reasonable doubt at trial. An accused, moreover, is accorded a broad array of due process protections — the right to counsel, to confront witnesses, to present a defense, to testify or choose not to do so, to be charged only if a grand jury approves, and so on.

But when the rights at issue, even though significant, are fewer or of less consequence, due process demands less. Our liberty may be deprived by arrest, for example, or the privacy of our home deprived by search, based on a police showing of mere probable cause that a crime has been committed or that evidence is being concealed. Our Fifth Amendment right against self-incrimination, to take another obvious example, does not excuse us from accounting for ill-gotten gain in the compulsory filing of tax returns (though we are not necessarily obliged to say where the money came from).

This kind of line-drawing, which balances individual rights against community interests, is a constant feature of life in a free society. No person is immune from it, and no individual right — as we’ve seen, not even life itself — is insulated from it. 

One complaint about the potential injustice of red-flag laws is that they are too “predictive.” That is to say: How do we really know that a person presents such a peril that the denial of his Second Amendment rights can be justified in the absence of criminal or other disqualifying conduct?

To be sure, we’re only human and our powers of prognostication are highly fallible. It is certainly possible that a person could be unjustly deprived of firearms rights, just as a person can be unjustly convicted, or falsely arrested. Nevertheless, the fact that mistakes and abuses are inevitable does not mean they are routine — we know they are not. And the fact that we cannot predict the future with certainty does not render us unable to address its plain-as-day possibilities responsibly. Indeed, we are obliged to do so.

To take a fitting example, the Constitution’s Eighth Amendment guarantees that, when a person is accused of a crime, “[e]xcessive bail shall not be required.” This constitutional safeguard is commonly thought of as a “right to bail.” But the right is importantly qualified. A judge may deny bail on a showing that the accused is a flight risk. We certainly do not know ahead of time whether the accused, if granted bail, will abscond. Yet judges routinely make this determination, scrutinizing the accused’s roots in the community, ties to other jurisdiction, and means and motive to flee. It is not an exact science, but we do the best we can. We make sure the accused is vested with due process rights to contest the prosecution’s claims, and the system works well. Not perfectly, but well. There is no perfect in this vale of tears.

Beyond that, notwithstanding the Eighth Amendment, federal law also permits pretrial detention if a judge finds the accused is a “danger to the community” —  meaning, the accused is too great a risk to intimidate witnesses or significantly threaten the peace if released on bail. Again, there are significant due process protections, the government must provide clear and convincing evidence, and the accused may appeal a detention ruling to a higher court. That the judgment involved is predictive does not make it infirm.

We know that under federal law, there are many circumstances short of a criminal conviction that justify the denial of firearms rights. For example, under Section 922 of the federal penal code, it is a felony to transfer a firearm to a person who (a) is under indictment, (b) is a fugitive from justice (even if not convicted), (c) is a drug addict, (d) has been adjudicated a “mental defective,” (e) is an illegal alien, (f) is a legal alien admitted on a nonimmigrant visa, (g) has been dishonorably discharged from the armed forces, (h) has renounced his U.S. citizenship, or (i) is subject to a restraining order.

The last category is worth pausing over. The bar against the transfer of a firearm applies only if the restraining order was issued with significant due process protections: (1) there was a proceeding at which the person restrained was given notice and a meaningful opportunity to object, and (2) the court found that the person restrained posed a credible threat to the physical safety of, or expressly prohibited the use of force against, an intimate partner or child. 

Again, constitutional rights, very much including Second Amendment rights, are subject to reasonable restrictions — and what’s reasonable could permissibly be severe, depending on the circumstances. It is no argument to complain that such restrictions involve predictive judgments; all lawful prior restraints do. It is no argument to complain that judges could abuse their powers or otherwise make bad calls. Again, that is always a possibility, and it is why appellate review is a staple of our judicial system.

If legislatures compose red-flag laws with sufficient due process rights, it would be unreasonable to oppose them. They would represent a meaningful precautionary step, which the public favors after too many massacres. They would not burden the vast majority of law-abiding gun owners. And if reasonable action is not taken, it will become increasingly difficult to stave off unreasonable restrictions — which are favored by many Democrats and much of the judiciary.

So let’s be reasonable.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His new book, "Ball of Collusion," will be published by Encounter Books on Aug. 13 and is available for pre-order. Follow him on Twitter@AndrewCMcCarthy.

Why Red Flag Laws Are Not A Good Solution To Mass Shootings

Do you feel comfortable giving up a cornerstone of our republic for a safety dependent upon enforcement by a government that has failed at this before?

By Dana Loesch

AUGUST 6, 2019

The people who report your Twitter account and your Facebook pages because they dislike your opinion want you to trust a government-run system where people can, without serious penalty of law, report you and have your property confiscated before you’re allowed to defend yourself in court weeks, even months, later.

Politicians refer to law-abiding, gun-owning Americans as “domestic security threats,” yet want you to trust them with implementing such a system. I’m talking about red flag laws and the risk they pose to due process—you know, those other rights after the Second Amendment in the Constitution.

Red flag laws, also known as Extreme Risk Protection Orders (ERPOs), have passed through a number of state legislatures across the country; Sen. Marco Rubio has a somewhat new legislative proposal titled the Extreme Risk Protection Order and Violence Prevention Act. Sen. Lindsay Graham joined Sen. Richard Blumenthal to co-sponsor red flag legislation; even Rep. Dan Crenshaw has mentioned ERPOs for potential consideration.

There is nuance to be had here, for sure, but realize that it is an abrogation of due process to invert the order of “innocent until proven guilty” to “somewhat guilty until proven innocent.” The question isn’t whether these laws do this, the question is whether you feel comfortable giving up a cornerstone of our republic for a safety dependent upon enforcement by a government that has failed at this before.

The murderers in Parkland, Florida and Dayton, Ohio, are two recent examples. These two monsters were walking red flags with access to firearms and yet, with all of the laws available to adjudicate them ineligible to carry or purchase guns, they continued unabated until the unthinkable. They weren’t stopped.

In fact, the Parkland murderer was coddled by a school district that pretended a refusal to report crime (thereby suppressing their criminal statistics) was the same thing as reducing crime, and they received federal dollars for it. That murderer’s violent behavior (beating his adoptive mother, sending death threats to fellow students, and putting a gun to another person’s head, to list a few offenses) was so well known, teachers had a backup plan in case he decided to become threatening, and he was searched every morning after arriving at school.

We didn’t need red flag laws to get either of these individuals before they committed their crimes. According to numerous local reports, had the previous Broward County sheriff performed his duties, case number 18-1958 would not have been able to legally purchase the rifle he used to carry out his evil. From everything reported on the Dayton murderer, it seems barring him from legal purchase or possession of firearms by adjudicating him mentally unfit was entirely possible.

None of this is to say that nothing can be done. To the contrary: I and others have spoken for some time about the need to ensure that the systems upon which we rely to stop heinous would-be criminals at the point of sale needs to be up-to-date with timely reporting of ineligible, violent cases. This problem was pushed into the national spotlight after the horrific murders at the First Baptist Church in Sutherland Springs, Texas, where an evil prohibited possessor took the lives of 26 innocents and injured 20 others.

That murderer was convicted of domestic assault during a court-martial and thus ineligible to legally purchase or carry a gun before his spree. Yet because his record was not submitted to the federal database, the National Crime Information Center (NCIC), which is referenced during a background check at the point of sale when purchasing a firearm, he was able to legally purchase firearms.

The Air Force took responsibility and vowed a lengthy review and to never repeat the error. The Chicago Tribune examined other cases of oversight wherein states and even government agencies failed to forward similar cases to the NCIC. 

For the system to properly work requires information. For us to properly address why these awful tragedies keep occurring, we need to ask why and give that every effort instead of only ever focusing on the how, with no considerations for anything else.

We have a society that champions disrespect for life, abandons responsibility for one’s actions, a society that redefines criminal activity by calling it a “loophole” instead of what it is, a criminal act; a culture that is slowly accepting violence as a legitimate form of disagreement, a society where male role models are hard to find and there is a crisis among young men that isn’t attributable to video games (are Republicans seriously entertaining the idea of exchanging gun control for game control?). We need to fix theseproblems for our society to work properly.

I hope that those promoting red flag laws address these concerns and answer questions like: What do red flag orders offer that our current legal options (civil commitments, TROs, et. al) do not? Why a long 14-day waiting period (Rubio’s bill) to defend oneself in court? Where are confiscated firearms to be kept — and if the answer is with local law enforcement, how are local enforcement agencies empowered to both store confiscated firearms and assume liability for that storage?

For friends of mine who have proposed Gun Violence Restraining Orders (GVRO), how soon are respondents able to defend themselves against claims, particularly ex parte orders? And with either ERPOs or GVROs, will any considerations be given to women defending themselves against domestic abusers who might misuse the system to render their victims defenseless? 

How will GVROs be lifted — and doesn’t that still require the respondent to prove his or her innocence? Is anyone concerned that both of these proposals still invert the presumption of innocence until proven guilty?

We all want to save lives and prevent terrorists, dangerously mentally unstable, or just plain evil people from carrying out horrific intentions. If preserving innocent people’s right to defend themselves with force equal to that of their potential attacker is off the table, then how?

Dana Loesch is a nationally syndicated talk radio host of “The Dana Show” with Radio America and a best-selling author.