by John Harris
Following practically every mass public shooting, the gun control advocates call for “reasonable” responses to “gun violence”. One of the present favorite alleged solutions of the those who seek to ban guns in society is the incrementalism that includes the opportunity to leverage a tragedy by calling for “Red Flag” laws.
A “Red Flag” law is nothing more than a gun confiscation order. That is its failure as a solution to violence. But, that is the very reason why gun abolitionists proffer it at every opportunity.
Those who advocate for Red Flag laws will claim that it is a mechanism which allows families, friends, co-workers, and even law enforcement to bring a complaint to some category of judge. Typically, the complaint asserts that the individual is an immediate risk of harm to himself/herself or to third parties if they are allowed to have possession of a firearm. The complaint seeks an ex parte order from the judge to direct law enforce to go out and seize the individual’s firearms. That seizure can be temporary or permanent. That order may or may not result in the individual either temporarily or permanently being able to purchase a firearm. It is important to note that usually the complaint is filed and the order is issued with no notice or opportunity to be heard before the order is issued and the firearms seized.
A “Red Flag” law is not effective because it operates under a delusion that the firearm is a necessary element to the person’s capacity for violence or willingness to hurt themselves or others. Its a lie just like Satan telling Eve everything would be ok if she just ate the apple. Just like Satan’s lie, the Red Flag law lie is not designed to do what the advocate claims, it has an ulterior goal. For Red Flag laws, the lie is that it would stop or avert violence but the ulterior goal is to have the government seize firearms.
The problem with the Red Flag law is the true goal of its advocate. The advocate’s true goal is gun abolition and gun control. The goal is not in stopping, reducing or preventing violence. It is not in interceding with someone who has a mental or emotional crisis that makes that person an immediate risk of harm to themselves or others. The Red Flag law literally ignores and could care less about the risk which is not the gun but the person’s mental or emotional situation. The real risk is ignored because the gun control advocate’s objective is not to deal with the REAL problem. The only goal is increased and ultimately total gun control.
But there are steps that are designed to deal with the risk – the individual who poses an imminent risk of harm. There are already laws in Tennessee and most other states which are designed specifically to deal with the situation where an individual is an imminent risk of harm to themselves or others.
Tennessee’s existing laws regarding “emergency involuntary committals” provide a means to deal with a situation where a person poses an imminent risk of harm to himself/herself or to others. Under these emergency orders, a petition can be filed with a judicial magistrate or judge. The petition has to be supported by a preliminary mental assessment by either doctors or other qualified individuals. If the court finds that the person does pose a risk of harm, the court can order that the person be involuntarily held in a mental health facility for up to perhaps 2 weeks for professional observation and assessment by mental health professionals. The procedure focuses on the individual and whether the individual is a risk. It takes the risk, the person, and gets them help by having professional medical assessment and if necessary treatment.
Emergency committal proceedings place the focus on the real risk – the person. Red Flag laws do nothing but advance a gun control myth and agenda. Red flag laws make progressives and some Republicans “feel good” but leave the real risk – the individual – unsupervised and free to pursue their agenda by any means of their selection.
Another problem with consideration of Red Flag laws is whether they are even constitutional After the United States Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen in June 2022, there is a serious question of whether a Red Flag law would be an intentional violation by the state and the proposing legislators of the 2nd Amendment, 14th Amendment and whether it would constitute a knowing federal civil rights violation if enacted.
The Supreme Court clearly placed an affirmative burden on the state to show that a law of that type existed in 1791. Legislators who propose such laws but who are unable to put forth clear and convincing proof that a Red Flag law or a clear analogue was part of the “national historical tradition” in the states as of 1791. Although the reported cases applying Bruen to mental health issues have generally not advanced to the appellate level at this point, at least one New York Court has already ruled in partial reliance on Bruen that New York’s Red Flag law violates the constitutional protections and thus declared to unconstitutional.
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John Harris is the Executive Director of the Tennessee Firearms Association.
Photo “Gun” by Karolina Grabowska.