Everyone who values our rule of law and the general premise our country was founded upon (that our rights are fundamental, inalienable, and pre-political) should agree with the legal challenges seeking to overturn “red flag” laws across the country. I have not read one such state law yet that is constitutional, and the legal philosophy behind these laws is dangerously illegitimate.
Generally, a “red flag” law is defined as a gun violence “prevention” law
that allows law enforcement or some family members to petition a state court to order the temporary removal of firearms from a person who exhibits some form of “danger” indicators that supposedly justify such restrictions. Fifteen states and the District of Columbia have some version of a red flag law.
But prevention is the key word. Our justice system does not punish people before they commit crimes. Through these red flag laws, the state is now empowered to unilaterally infringe upon a right specifically enumerated for constitutional protection in our Bill of Rights without due process and before a person commits any kind of criminal conduct. Just because someone “might” be a danger is wholly legally insufficient to infringe upon their right.
Even if it were constitutional, the logic doesn’t follow. Most people who exhibit the same supposed mental health indicators
never commit mass shootings. Just because 100% of mass shooters happened to wear a T-shirt doesn’t mean we now strip guns from everyone who wears t-shirts. Even if the mental health indicators were rationally related to shootings, in America we simply don't profile our citizens and strip them of their rights as a legal preemption. Our justice system imposes punitive consequences after actual conduct.
We also filter this view of “obvious signs” after the fact in many cases. It’s easy to identify a mass shooter after they pull the trigger. To somehow categorize “potential” shooters is akin to thought crimes.
Valid laws must be neutral laws of general applicability and not so overbroad as to be unreasonably vague or overreaching, particularly when seeking to foreclose a fundamental right guaranteed protection by the Constitution.
The “red flag” laws are stripping citizens of their protected right to keep and bear arms without due process and without any precursor of actual criminal conduct or even inchoate acts.
We are also guaranteed protection from guilt by association, so to suggest that simply because a person may fit within a certain demographic of supposed “mental health” status warrants a legal justification for preemption of a fundamental right is just absurd.
This is merely a fear tactic the Left is using to impose gun control at whim against law-abiding citizens, enforcing it through judges who will err on the side of “caution” for their own political protection instead of on the side of the rule of law.
I saw the same example of “erring on the side of caution” in legal practice in the context of civil and criminal protection orders. Judges often did not impose the actual standards of proof and burden of production on the petitioner, choosing instead to grant a protection order (both temporary and permanent orders) so that just in case something might happen, no one could blame the judge.
That’s not how our law works or should work. It’s possible that any person could, maybe, possibly, choose to break the law or commit a criminal act at any time. The mere possibility is insufficient to impose punitive sanctions or infringe on a person’s rights.
But red flag laws seek to do just that. We have never in this country supported punishing law-abiding citizens and taking away their rights in the name of “prevention,” just because a small percentage of the population is otherwise criminal. This is precisely what our constitutional republic was designed to protect against and expressly forbids.
All crimes, and especially mass shootings, are horrible. We should continue to punish crime, and we must continue to protect our rights.
Jenna Ellis (@realJennaEllis) is a member of the Trump 2020 Advisory Board. She is a constitutional law attorney, radio host, and the author of
The Legal Basis for a Moral Constitution.