This is TTAG’s weekly roundup of legal and legislative news affecting guns, the gun business and gun owners’ rights.
Red Flags Continue to Wave, But For What?
In a manner that’s beginning to make me feel like a broken record, this week we see New Jersey’s red flag law take effect, as we’ve discussed in previous weeks, and local governments wanting in on the action as well. Instead of just reporting on the goings-on in these localities, let’s talk about the red flag issue more broadly.
This type of measure is seemingly on its way to nationwide adoption, be it through an unconstitutional act of Congress, coercive federal “funding,” or individual state action. But why is it red flag laws have gained such profound staying power? Is it because they’re effective? Safe? Meaningful?
In reality, red flag laws are none of these things. “Studies” that claim red flag laws “may have” prevented murders miss the mark in a pretty horrifying way: they confuse the execution of a “red flag” order with the neutralization of an actual dangerous threat.
The “study” currently being touted by red flag proponents is authored primarily by UC Davis public health scholar Garen Wintemute (quelle surprise!). It suggests that because, of the hundred-some-odd red flag orders the authors were able to research, twenty-one involved some threat of a mass shooting, that the red flag laws “may have prevented” mass shootings.
It leaves one to wonder: Around the turn of the century, when the pages of dime store novels were alight with depictions of train heists and shootouts at the saloon, might people hot with emotion have written in their diaries about robbing trains or flashing a six-gun in a saloon? Could it be that, in a culture that apotheosizes mass shooters–despite mass shootings being incredibly rare–that someone “mentioning” a type of crime that the popular media won’t stop talking about has little bearing on whether they’d actually do it?
People are, to a tremendous extent, products of their environment. If you tell a child, every single day, that the most horrifying thing he could do would be to ride a bicycle, don’t be surprised if that child, in an emotional fit, threatens to become the next Lance Armstrong.
Does that tearful threat actually affect the likelihood he will tear through the French countryside on a fixed gear? Probably not. Just like the 21 people analyzed by Wintemute are not likely to have actually been one-in-a-hundred-million mass murderers.
The confusion of a red flag order and actually neutralizing threats doesn’t stop with mass shooter hysteria. The FBI recently used Oregon’s shiny new red flag law to seize the arms of an ex-marine after he made vague allusions to “slaughtering” antifa. This happened after the ex-marine said, over a loudspeaker: “If antifa gets to the point where they start killing us, I’m going to kill them next. I’d slaughter them and I have a detailed plan on how I would wipe out antifa.”
Those statements caused the FBI to petition the Oregon courts to red flag the man. Despite never accusing him of any crimes, his property was seized and he was prevented from engaging in political activism. Retired FBI agent Michael German said of the response: “Clearly, this latest incident shows how effective proactive policing can be in reducing the chance of violence.”
Now, to be sure, that wasn’t dinner table conversation. In fact, it wasn’t even campfire conversation. It’s pretty wild, weird stuff to be shouting. That said, conditional threats (as opposed to “true threats”) are protected speech. (The general rule is that if the threat begins with “if…” it isn’t a “true threat,” although there have been exceptions.)
The fact that the Oregon man made a weird conditional threat has nothing to do with “how effective proactive policing can be in reducing the chance of violence.” There was no evidence the man was anything more than (perhaps too passionately) politically active. It only shows how effective proactive law enforcement can be in enforcing laws–for better or, more likely, for worse.
St. Louis Mayor Doesn’t Want to Follow State Law
A few years back, Missouri became a permitless carry state. This is a good move for a lot of reasons. It means that police have to presume that someone carrying a firearm is doing it lawfully, as opposed to demanding to see a permit.
It also means people are freer to respond to meaningful changes in their own lives without having to seek government permission or waiting arbitrary times. It shouldn’t be too difficult to see that when you need the means of defense, you need it now. Not in 3-5 business months.
That said, St. Louis Mayor Lydia Krewson is asking the state to please not apply the law to her city, because she wants to control who can and cannot have an effective means of protecting themselves. Why? Well, for the benefit of… the police?
“This is for our police department. Our police don’t have the tools they need to take guns off the street. Having a permit to carry a gun is really not a big ask. It’s for our police officers,” Krewson said.
That’s right, residents of St. Louis. Worry not about protecting yourself from crime. Your mayor wants local police to “have the tools” needed to arrest and jail anyone who dares to carry a firearm without first jumping through whatever hoops your city has in mind. What of the repeated, manifestly intentional civil rights violations by St. Louis police? Worry not. It’s for our officers.
Cook County, Illinois Assault Weapon Ban Holds Up in Federal Court
In an unsurprising but still disappointing move, the Court of Appeals in the Seventh Circuit upheld Cook County’s (wherein lies Chicago) ban on assault weapons. The underlying lawsuit focused on the vagueness of the ban, arguing that residents with semi-automatic weapons “that are not assault rifles” may be subject to prosecution.
The Court of Appeals wasn’t convinced by this, opining that the plaintiffs “have not come forward with a compelling reason to revisit” the same court’s previous ruling in the Highland Park assault weapon case, where the court uninspiredly noted that the Second Amendment “does not imperil every law regulating firearms.”
These decisions, as they have come to be common, are not evidence of the constitutionality of assault weapon bans. They are instead evidence of the hopeless gutlessness of the federal judiciary.
Lower courts cite a lack of precedent as a reason to bury their heads and ignore a serious abuse of power, rather than create precedent and allow it to be appealed if incorrect. If there’s a “thumb on the scale” when it comes to determining whether a right has been abridged or not, it ought be on the side that isn’t threatening to initiate violence against people who just want an effective tool to protect themselves.
Instead, the judiciary protects the status quo–however they perceive it–with nigh-on paternal passion. So the lower court buries its head, and the Supreme Court ignores the appeal, leaving the lower court decision to stand. The federal courts are supposed to be checks on abuses of government power, not a rubber stamp mill.