Debate 7/17: Flag on the Play

Q : Should persons with certain known behavioral tendencies such as suicide or violence be prohibited from owning guns? Legislatures across the country are taking up the difficult question of when the state can remove weapons from an individual who, having legally obtained a gun, begins to display behavior or rhetoric threatening to society. It […]

Red Flag Gun Laws and the Constitution on collision course

By David H. Landon

Q: Should persons with certain known behavioral tendencies such as suicide or violence be prohibited from owning guns?

Legislatures across the country are taking up the difficult question of when the state can remove weapons from an individual who, having legally obtained a gun, begins to display behavior or rhetoric threatening to society. It is a difficult issue because the state must balance the protection of society against the individual’s constitutional right to own a firearm.

California, Washington, Oregon, Indiana and Connecticut have statutes that can be used to temporarily take guns away from people a judge deems a threat to themselves or others. Lawmakers in 18 other states—including Florida—plus the District of Columbia have proposed similar measures.

In the aftermath of the Parkland, FL, high school massacre, a number of states are showing an interest in passing confiscatory “red flag” laws. The laws allow family members or law enforcement officers to ask a judge for a “gun violence restraining order” or an “extreme risk protection order” against a gun owner who behaves in a way that is perceived to pose a threat to themselves or others. A hearing before the court is then scheduled to determine if the risk is substantial enough to justify the confiscation.

Recent mass-shooters have displayed anti-social behavior and actually telegraphed their intention to commit violence towards others in the days leading up to their crimes. This behavior was observed and reported by family members and friends of the individuals to law enforcement.

Those who favor red flag laws argue the state has a compelling reason to intervene in order to protect innocent lives and that safeguards can be built into the process to restore rights to any individual whose right to own a gun was terminated by the state.  Those proponents of the law suggest that the red flag laws act as a sort of timeout, so someone in psychological distress can get counseling while their fitness to possess a gun is evaluated. They also point out states where these laws are on the books are primarily used to prevent gun suicides. For example, in Indiana, where red flag laws exist, suicide-by-gun is down by 13% since 2007.

Those who oppose red flag laws argue such a taking of an individual’s guns violates the Second Amendment to the U.S. Constitution. Under the enforcement of these laws, the standard is not whether there is probable cause to believe that the gun owner has committed a crime, as the Constitution presently requires. Instead, there is a subjective standard where a determination is made about whether the owner represents some possible future danger to himself or others. They argue that American citizens are stripped of their fundamental constitutional rights based on the subjective possibility of a “future crime.” Opponents point out in the event of a false accusation, or even an honest mistake, the accused gun owner could end up spending thousands of dollars on attorney fees to restore their constitutional rights, and there is no remedy built into these red flag laws to make them whole again. Finally, they argue that if the Constitution can be suspended in a secret hearing for gun confiscation, where else can this lead?

Q: Should persons with certain known behavioral tendencies such as suicide or violence be prohibited from owning guns?


Nay: Too many red flags

Red flag laws will do little more than make work for lawyers

By Ron Kozar

“Red flag” laws will do little to drive down crime, but a lot to politicize an already too political judiciary.

Start by considering the wrong premise on which “red flag” laws rest, namely that guns promote crime. In fact, over the past 30 years, as the rollback of gun control, the constitutionalization of gun rights, and the enactment of concealed-carry laws have made guns more readily available, violent crime has gone not up, but down. Way down. The murder rate today is almost half what it was in 1990. In the 25 largest US cities, the rate is a third of what it was then. The robbery rate is just 55% of that in 1990, the assault rate 63%, the rate for rape 75%. It’s true that violent crime surged again with the “Ferguson effect” under Obama, whose vilification of local police dampened law enforcement, creating an opening for more crime. But rates are still far, far lower than they were in 1990.

Why the drop in crime? Over that same period, the law-abiding majority armed itself as never before. From 1994 to 2010, BATF statistics show that sales of new guns soared from six to sixteen million a year. The lesson is aptly summed up in the title of book from a few years back: More Guns, Less Crime.

The liberal push to reduce gun ownership thus aims to tamper with a winning formula that saves lives. The push for “red flag” laws is the latest direction in which that misguided effort is being channeled. What drives that effort is the media feeding-frenzy over recent school shootings. Anyone can see that the spate of school shootings is causally related to the way liberals glorify those shootings, with solemn mayoral proclamations and interruptions of our regularly scheduled program, making every assailant a household name. The lesson to the pimple-faced losers behind those shootings is clear: if you want to be noticed, if you want to cause some grief, if you really want your measly life to matter, then shoot up your school. There is no research on whether each recent school shooting was inspired by TV paroxysms over the one before it, but does anyone doubt that it was?

The point of saturation-coverage of school shootings, of course, is not to cover news, but to drive policy. The same number of kids may die over a summer weekend in Chicago or Baltimore, but liberal governors don’t lower the flag to half-staff for them. And it is the conscious focus on school shootings, to the exclusion of others, that has given rise to “red flag” laws. Several mass shootings, you see, were perpetrated by kids whose online musings openly spoke of wanting to kill people at school. When someone talks about doing such things, “red flag” laws will enable concerned citizens to petition the nearest judge for an order taking away the commenter’s gun.

The opportunity to abuse such laws is obvious. For one thing, every wife in every contentious divorce will seek a no-gun order against her soon-to-be-ex-husband. For another thing, every helicopter mom whose little darling has a persecution complex will be able to make mountains of fuss out of molehills of antagonism by suing the antagonist for a no-gun order. And it won’t be hard. Everyone under 30 is plugged in and mouthing off online, and most of them are experts at conjugating the word kill. If that’s a “red flag,” then about two thirds of the US population can be hauled before a judge for a no-gun order. And there’s the question of efficacy. Our experience with alcohol prohibition and drug laws suggests that no-gun orders will seldom succeed in actually keeping guns out of recalcitrant hands.

But the biggest problem is the lack of an objective test to determine whose guns to take. “Red flag” laws would give a judge standardless discretion to seize guns from anyone whose statements and opinions he finds frightening. And who might liberal judges find frightening? Every outspoken supporter of Trump, that’s who. When the left half of the body politic sees in the right half a basket of deplorables, among which liberals are sure that a million would-be Dylann Roofs are incubating, it will not be hard to find a black-robed Lois Lerner ready to bang her gavel and confiscate your gun just because you bellyached a little too apocalyptically about abortion or illegal aliens or the prevalence of sodomy in the demimonde. In a political culture where the temperature is always high and every other word starts with F, it won’t be hard for anyone with a political axe to grind to find something in your online portfolio that qualifies as a “red flag.”

That’s the kind of nonsense that gets enacted into law when grief and adrenaline rather than cool-headed reason drives lawmaking. Don’t be stampeded. Say no to “red flag” laws.


Yay: The cornerstone of the American ethos

Whatever happened to looking out for each other?

By Patrick Bittner

At any time in the history of the United States there exists a list. A list not of triumphs and successes or of historical feats or firsts. Rather, this list exists to serve as a reminder of the improvements that can be made to our society. It is a list of failures, of shortcomings and awful reminders that we are a young nation and the pace of humanity has quickened in the last century. And while there are a number of poignant and pressing issues on that list, none can be more misunderstood or misconstrued than that of mental health. And while critics of this measure will cry foul on my claim that this is singularly a mental health issue, it truly is. The fact that the implement of destruction in this scenario is a firearm should not preclude the fact that we are talking about a situation that can perhaps not be solved but can lead to saving lives. Somewhere in our history we forgot or discounted that saving lives should be our number one priority as a country. Red Flag Laws, plain and simple, return us to a time when we showed that even those among us who need the most help and take the most to fix deserve every opportunity to be saved.

As with everything in our current political climate, the passionate shortsightedness of the gun lobby, with screams of “constitutional crisis” and “government seizure” clouding the already skewed judgment of subscribers of that skewed religion, puts the ideas of logic, reason, and public good into a diminished corner. And with the absence of these things, the true victim, not the supposed loss of liberty, comes out. Firearms are used in two-thirds of suicides. That means, out of the nearly 45,000 suicides each year in the United States, 30,000 of them are carried out with firearms. That is 30,000 deaths that could at least have been made more difficult by instituting these types of laws. And while people will cry foul and claim that no amount of lives are worth giving up the right to bear arms, that line of thinking misses the point of the laws.

This article is not a debate on the Second Amendment. It is not a refutation of the years of historical legal precedent on the matter or is it a liberal propaganda piece denouncing the right that so many Americans choose to exercise, myself included. It is, however, a reminder that the Constitution is a fluid document, one that is to be changed and updated as the time and thinking it exists in changes. 200 years ago some human beings were considered three-fifths of a person; 98 years ago, half of the population could not vote; and three years ago, two consenting adults could not get married. These have all been addressed and fixed to a degree that progress was created. This should and will happen with the Second Amendment at some point in the future, to the betterment of society.

Should we institute laws that would remove firearms from the possession of citizens who demonstrate a reasonable risk to themselves or others? Undoubtedly yes. Should there be oversight as to what constitutes “reasonable risk” such as judicial review? Undoubtedly yes. But what will happen with this debate, as has happened so much recently, is the details being lost among the arguments. There should be a rigorously healthy debate about this but that should not prevent actionable policies from being implemented. It is the responsibility of each one of us to make a valid attempt to help others. This is the cornerstone of the American ethos. We get so caught up in the idea of what is mine can’t be mine and others that we forget we each have the power to make a difference each day.

Help an old lady cross the street and you have sacrificed your time and status to ensure the safety of someone less able than you. Pick up a piece of litter you see on the ground and you have righted the wrong of someone who was not fortunate enough to either have been taught or have the leisure to care about litter. Take a device that is legitimately designed for the purpose of taking life away from someone who is a danger, most likely through no fault of their own, and you have shown that you care enough about that person that you realize the Second Amendment is not an unbreakable bond with liberty. These laws are a clear way to save lives and as such should be immediately implemented. Period.

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Patrick is a student of Humanities and loves politics. He enjoys writing for DCP and hopes to get people thinking about powerful issues. Reach DCP freelance writer Patrick Bittner at PatrickBittner@DaytonCityPaper.com.

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