Hard cases make bad law, as they say, and red flag laws are bad.
“Red Flag” laws, which have been a hot topic of discussion since last weekend, are designed to take guns away from mentally unstable people before they can harm themselves or anyone else.
This sounds good in theory, but in practice, such laws are a danger to mentally healthy people in our day and a threat to the Constitution to boot.
The main question is this: who gets to decide who is too mentally unstable to own a firearm? And how is that decision made? Most newly adopted laws (six such laws have been signed this year) and newly proposed laws (two dozen have been introduced in various states) require some kind of certification from a mental health professional that a judge can then use to confiscate someone’s firearm(s).
To put it bluntly, this puts your right to own a firearm into the hands of the American Psychological Association or the American Psychiatric Association, who will set the standards for the mental health community. No thanks.
These groups, for instance, once correctly viewed homosexuality as prima facie evidence of a profound mental disorder. But now they think that those who still believe that are the mentally disordered ones.
There are many on the left, including many in the helping professions, who think of conservative Christians as mentally disordered and incurable bigots, racists, homophobes, and xenophobes, and fantasists who believe in an invisible but powerful friend in the sky whom no one has ever seen. If these mental health professionals acquire the authority to legally recommend the confiscation of firearms, every liberty we value will be placed at risk.
As NRA spokesman Catherine Mortensen said, any risk protection orders must include, at a minimum, “strong due process protections.” After all, we are talking here about an explicit constitutional right, the right to own and carry firearms, enshrined in the Constitution as one of the inalienable rights bestowed on us by the Creator.
The Constitution is clear that an individual can be required by the state to forfeit a constitutional right, but only after he has received “due process” first. This means that he must be indicted for a crime established by lawmakers, have the right to face his accusers in open court, be put on trial before a jury of his peers, and have the assistance of counsel. If a jury finds him guilty, then and only then can he be deprived of his right to self-defense.
If lawmakers are serious about these protection orders, then some form of treatment must be required if the restriction is to do any good. Who will administer the treatment and who will be required to pay for it? Do we have any evidence that conventional professional counseling even works in situations like these? Otherwise, it’s all just feel-good legislation that accomplishes nothing.
Will such legally prescribed treatments include confinement in a facility? That’s important because it involves the revocation of another inalienable right, the right to liberty. Will such extreme risk orders include meaningful punishments for those who inevitably will make false claims in circumstances of high interpersonal conflict? What exactly will those penalties be?
Finally, if a judge manages to take a firearm away from someone he considers dangerous, what will prevent the accused from simply finding another weapon? According to researcher Clayton Cramer, mass murders have been carried out with axes and hatchets and knives, with fire, poison gas, explosives, and vehicles.
Another danger is that, if mental stability becomes the issue, anyone who is on any kind of prescription psychotropic medication from antidepressants on up will be suspect.
In USA Today’s list of mass murders for the years 2008 to 2017, almost 25% were carried out without guns. We don’t hear much about them because they don’t fit the left’s narrative that it is guns and not people which are inherently evil.
On top of all this, only about 25% of all mass shooters had been clinically declared mentally ill before the carnage occurred. Everytown for Gun Safety, a gun-control organization, says only about half the gunmen in mass shootings even exhibit warning signs before the killings. How does that help us with the other half?
Besides which, in America, we do not punish people for what they might do.
The only solution is the one that has been there since 1789: the Second Amendment, which guarantees the right of all Americans to defend themselves with a weapon at home and in public. Of all mass shootings in the last 70 years, 98% have taken place in gun-free zones which turn into human shooting galleries when nobody in the place can shoot back. It turns out the only ones who were gun-free were the ones who needed a gun to protect themselves. Red flag laws aren’t going to do anything about that.