‘Red Flag Gun Laws’, or ‘Gun Violence Restraining Orders’ are becoming increasingly popular among opponents of the right to keep and bear arms. Politicians from both major parties seem anxious to use these laws strip Americans of their right to armed self-defense guaranteed by the Second Amendment, as well as their right to due process, guaranteed by the Fifth Amendment.
The premise of these laws is that individuals who are believed by others close to them to present an imminent risk for committing suicide or violence against others can be stripped of their right to have firearms. Typically, such action requires just a complaint, subject only to judicial review, without informing the subject of the complaint or allow him/her the opportunity to respond prior to firearm confiscation.
If approved by the judge, armed government agents are dispatched to seize firearms from the accused. Unsurprisingly, executing these orders can lead to violence and tragedy (as in Maryland recently). Unfortunately, these laws are misguided—or represent misdirection—and fail on multiple levels.
First and foremost, how such a scheme denies the accused’s right to due process is obvious. From the Fifth Amendment: “No person shall . . . be deprived of life, liberty, or property, without due process of law.” Subjecting these complaints to unilateral judicial review without allowing the accused an opportunity to hear the complaint and respond, or even be notified of the proceedings, before dispatching law enforcement amounts to glorified SWAT-ing.
Further, these ‘GVROs’ allow government intervention based on the suspicions and claims of laypersons. Even experienced professionals specializing in mental health have extremely limited ability to reliability gauge suicide risk—family and law enforcement officers with little to no training have even less chance of making accurate predictions.
Similarly, psychologically based violent behavior—as opposed to politically motivated violence, or the actions of those with a history of repeated criminal violent conduct—cannot be predicted reliably even by psychiatric professionals.
To be sure, there are potentially dangerous individuals roaming these United States—though the government has an extremely poor record of interceding proactively to defend law-abiding citizens. Gun control laws in particular have a well-established history of endangering rather than protecting Americans from violent people.
To protect innocents from such individuals, we should have a legal framework in place which would allow intervention with high risk individuals prior to the commission of heinous irrevocable acts. But it must be done in ways that respect subjects’ right to due process and that insures the greatest likelihood of success—which highlights the most glaring problem with ‘Gun Violence Restraining Orders’.
While firearms, and handguns in particular, are the most commonly used weapons in the United States by those committing murder or suicide, about 1/3 of all homicides and about half of all suicides in this country are completed without the use of firearms. It defies common sense to claim that individuals present such imminent risk to themselves or others that emergency intervention must be undertaken, but that only minimally impedes their ability to complete an act of violence by denying them only one means.
If we even could reliably predict who is about to commit suicide or homicide, the only logical response would be to completely restrict all potential means for completing those acts.
The process to accomplish that is arrest and detention, with urgent psychiatric evaluation and treatment when indicated. In California, for example, prior to passage of a ‘Red Flag Law’ (AB 1014) in 2014, the state had already had a statute on the books for nearly 50 years allowing individuals deemed at extreme risk to be detained for evaluation for 72 hours (Welfare & Institutions Code § 5150, passed as part of the Lanterman-Petris-Short Act of 1967).
This incongruity begs the question as to why politicians’ and other gun-grabbers’ chosen remedy is to seize guns. The only logical conclusion is that their primary goal is not to protect people, but rather to use the excuse to confiscate firearms.
Legal standards for arrest and incarceration or other confinement are usually quite stringent. The vague concerns of disgruntled relatives are normally not considered sufficient—though politicians appear keenly interested in expanding the pool of eligible complainants. The California statute at least requires that such individuals, once detained, must be evaluated and adjudicated a danger or be released within a brief proscribed period of time. If at that point they are deemed a risk to themselves or others, restricting their Second Amendment rights would be in keeping with Heller.
Many politicians of both parties and other government officials would be happy to appear in a photo-op with a pile of what they claim are ‘guns removed from dangerous individuals’. However, ask them to line up with a group of falsely accused citizens, removed from their homes at gunpoint and incarcerated, subjected to mental health evaluations and/or charged with ‘Pre-crime’ by a star chamber consisting of a niece who thought they were ‘a little off’ and a judge who is likely to be more afraid of not looking ‘tough on crime’ than of trampling on the Bill of Rights. That glad-handing lineup is going to be pretty darn short.
If individuals in our society truly present an imminent risk to themselves or others, then a tightly controlled process—such as California’s 1967 statute—is needed that would allow for emergency detention and professional assessment. This would be a meaningful response that might actually avert tragedies.
If someone sends a letter to the local paper threatening to commit mass murder, I guarantee that local law enforcement response will NOT be restricted to collecting their firearms. That individual will also be detained, and law enforcement may not stop at arresting them—they may even confiscate guns from their relatives.
‘Red-Flag Gun Laws’ and ‘GVROs’ are lies. The real goal of these laws is not to protect anyone, except politicians whose fears center on re-election. They are predicated on a series of false premises:
- that lay people can predict violent behavior,
- that just taking guns away from dangerous individuals sufficiently mitigates the threat of suicide and homicide,
- that such individuals cannot easily hide firearms already in their possession from authorities (or simply acquire new ones via the black market),
- and, that there isn’t a more logical and effective way to address well-founded concerns about people who present a risk of imminent violence.
Most importantly, they are based on the false premise that government can protect society effectively by imposing such anti-liberty interventions.
These are the same governments capable of twisting itself into such knots over an ill-conceived PR campaign that it failed to preempt a flagrantly dangerous individual whose home they had been called to dozens of times. The same governments that then failed to follow-up on a specific tip about him potentially attacking a school; government incapable that did not respond definitively when the same individual, known to on-site security as a ‘likely school shooter’, was seen on video carrying a ‘rifle case’ across a campus from which he had been barred.
It’s the same governments that issued ‘stand down and wait’ orders to brave officers ready to rush in risking death for a chance to save children they didn’t know; government whose response to the multiple failures that contributed to such carnage was to reassert its lack of duty to intercede in such cases.
Governments like that should instead be charged with operating a legalized SWAT-ing scheme to respond to ‘pre-crime’ without even the advantage of Phillip K. Dick’s ‘Pre-cogs’.
Too many Americans are ready and willing, even eager, to sacrifice their individual liberties for the illusion of security—but it is really someone else’s liberty they’re willing to sacrifice. And too many politicians—of both parties—see their own political careers as the only moral imperative, and view logic, Americans’ civil rights, and the U.S. Constitution as little more than inconvenient impediments.
Tom Vaughan, MD is a neuroradiologist in private practice in Louisville, KY. He is a shooting enthusiast who believes in individual liberty and personal responsibility.
This article originally appeared at drgo.us and is reprinted here with permission.