Exclusive—Mark W. Smith: Republicans Raise the White Flag on Red Flag Gun Confiscation Laws

WASHINGTON, DC - MAY 26: Gun control advocacy groups rally with Democratic members of Congress outside the U.S. Capitol on May 26, 2022 in Washington, DC. Organized by Moms Demand Action, Everytown for Gun Safety and Students Demand Action, the rally brought together members of Congress and gun violence survivors …
Chip Somodevilla/Getty Images

Members of the Republican Party are busy betraying their base while simultaneously shooting themselves in the foot. They’re doing it by embracing so-called “red flag laws,” which is a euphemism for the creation of a separate legal system designed to target a single class of Americans (gun owners) and exact a severe penalty (gun confiscation).

That’s right, some Republicans have somehow concluded that targeting their political base (gun owners) by depriving those Americans of their fundamental constitutional right to keep and bear arms (the Supreme Court’s words, not mine) is constitutional, good public policy, and smart politics. These Republicans are wrong on all counts.

Ten Republican senators announced that they reached the “framework” of an agreement with Democrat leaders for a historic platform of new gun control laws to be rushed through Congress without the benefit of robust hearings or debate. For constitutional, public policy, and political reasons, Republicans should not put their fingerprints on any gun control laws this year or ever.

Let’s start with the constitutional argument. Gun confiscation laws masquerading as “red flag laws” form the centerpiece of the deal. Red flag laws allow the government to seize guns from people alleged to be dangerous. The evidentiary hurdle is shockingly low: a single uncorroborated accusation or complaint about the gun owner’s mental health history or current behavior will suffice to take away his guns. Often, the gun owner is not even notified of the accusations leveled against him or allowed to participate in the initial hearing deciding his fate. That’s right, the gun owner may not even be aware that his constitutional right to keep and bear arms is under attack. So, he can’t contest or refute the allegations made against him or challenge the accuser’s credibility. Think the January 6 Committee, except with the added authority to take away your firearms, and Liz Cheney defending your constitutional rights.

Speaking of constitutional rights, many of these gun confiscation laws deny the accused effective due process rights. The right to keep and bear arms is a fundamental constitutional right on par with other fundamental rights such as the right to life, liberty, speech, and religion. The Supreme Court affirmed that in the 2010 case McDonald v. Chicago. This means the government cannot infringe on your right to keep and bear arms, even temporarily, without respecting due process protections, such as notice of the hearing, the opportunity to be heard and to cross-examine witnesses, the right to counsel, the right to call relevant witnesses, and the right to discover evidence.

These red flag or gun confiscation laws also violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Last year, in a case called Caniglia v. Strom, the U.S. Supreme Court overturned a lower court decision allowing the police to enter a man’s home without a warrant and to confiscate his firearms. The Fourth Amendment says unequivocally that “no Warrants shall issue, but upon probable cause.” Many state confiscation laws allow warrants or orders based on a lesser standard, such as “reasonable cause,” “good cause,” or even “substantial likelihood” of danger—and again, this abandonment of constitutional protections applies only to gun owners.

Demonstrators during a rally calling for action on gun safety on Capitol Hill in Washington, DC, US, on May 26, 2022. (Ting Shen/Bloomberg via Getty Images)

From a public policy standpoint, there are many reasons red flag laws don’t make sense. First, these laws apply only to gun owners, and the sole remedy is to “take the guns.” If an individual poses a danger to others but doesn’t possess firearms, these laws don’t do anything to stop that person from committing harm. A dangerous and mentally unstable individual can kill and harm many people without guns. Plenty of killers have murdered people by driving vehicles into crowds, as in the Waukesha Christmas parade massacre last year. An arsonist killed 87 people at a New York social club by intentionally setting a gasoline fire. In Oklahoma City, 168 people were killed by an extremist using by a truck bomb. The Twin Towers were brought down by hijacked airplanes and box cutters.

Second, we already have a federal law in place that “disarms” those adjudicated dangerous and mentally impaired. We’ve had this law for decades.  In 1968, Congress passed a law—specifically, 18 U.S.C. 922(g)(4)—that makes it unlawful for anyone “adjudicated as a mental defective or who has been committed to a mental institution” to possess firearms or ammunition. Since then, courts have developed appropriate systems that provide for civil commitment or a mental health hearing, all with due process protections required by the U.S. Constitution. Such proceedings have more flexible remedies, such as voluntary treatment, mandated outpatient treatment, or long-term commitment. Red flag or gun confiscation laws, which are civil laws and not criminal laws, lack many key elements of due process. And that appears to be a feature and not a bug.

Third, red flag laws create a system that is ripe for abuse. Angry neighbors, ex-spouses, and political enemies can exploit red flag laws to “SWAT” gun owners as a means of seeking revenge, out of spite or simply as harassment. The cost to accusers is essentially nothing. Given that the government encourages people to “see something and say something,” vindictive claimants will have little difficulty saying they were acting for innocent reasons. In fact, in some states, accusers suffer no punishment for perjury. Remember, at the beginning of these cases, complainants probably won’t even be cross-examined.

So, who suffers the most under this system? Working class gun owners—the “deplorables” for whom the left holds so much disdain under the current system. You see, even if you, as an accused, win your case, you still lose. If a judge initially takes away your gun rights, it will cost you an enormous amount of money, time, and stress to try to prove your innocence and get your guns and your Second Amendment rights restored. Lawyers and mental health testifying experts are expensive, and the costs to the gun owner might exceed the value of the firearms that the government has taken. Nearly half of Americans can’t handle even a $500 emergency expense without worry. But that’s not all. Expect to take time off work and away from your family building your defense. Don’t think for a minute this will never happen to you. If you are an American gun owner, the target is already on your back.

And I’m not overstating the problem. A recent study found that red flag confiscation orders have been wrongly issued against innocent people at least one third of the time. Legal scholar David Kopel testified before the U.S. Senate that this figure probably underestimates the error rate because “government officials pressure [gun owner] respondents not to retain counsel and contest orders.” In other words, some folks do not fight back and maybe that’s because they don’t have the funds, are intimidated by the legal process or don’t have the time. If you didn’t have the time and resources to fund a prolonged court battle, you might succumb to that pressure too.

Under the framework some Senate Republicans have reached with Democrats, the federal government will doll out money to the states to implement red flag or gun confiscation laws. This is a federal subsidy designed specifically to deny civil rights to Americans. Historically, government funds are used to protect civil rights. Yet, these funds will encourage anti-civil rights efforts by channeling money into a discriminatory “justice” system designed to deprive working-class gun owners of their Second Amendment rights. Unlike civil rights laws, which are designed to protect and expand a person’s freedoms, red flag laws operate to diminish and strip away constitutional rights. The entire scheme is a back door to disarming the law-abiding.

It’s also worth mentioning that red flag laws aren’t going to stop criminals. Real psychopaths and mass murderers will have no hesitation in violating a red flag order, if one is issued. And that’s a big “if.” How likely is it that someone will give testimony against the neighborhood gang banger? Bottom line:  gun control laws will affect only the law-abiding and that is precisely the intent of these laws.

A memorial for victims of Tuesday’s mass shooting at Robb Elementary School is seen on May 27, 2022, in Uvalde, Texas. (Michael M. Santiago/Getty Images)

Like so many other laws aimed only at gun owners, this frantic push to enact red flag laws and other gun control results from government incompetence. We still lack basic information about the events in Uvalde, Texas beyond that it took the police over one hour to finally engage and kill the evildoer, and that an off-duty law enforcement agent was critical in eventually stopping the criminal attack. We do not know why the classroom doors inside the school at Uvalde, were not locked (allowing the shooter to get into the classroom and lock it behind him). The public school was on mandatory lockdown for more than ten minutes, which should have been enough time for teachers and students to lock the doors of their classrooms. We know that the classroom door locks worked. Why? Because police could not get into the locked classrooms after the shooter entered. All the media’s coverage about so-called red flag laws and firearms looks like a smokescreen to distract Americans from what appears to be massive incompetence by the Uvalde police department and school system. Pay no attention to government incompetence, but instead focus on punishing law-abiding gun owners who had nothing to do with the evildoer’s actions. Indeed, it appears that Senate Republicans have concluded that the answer to government incompetence is more government powers and more money to government instead of looking for ways to protect the Second Amendment rights of their constituents.

If the constitutional and public-policy problems with red-flag laws aren’t enough, let’s look at the political case. There is an oft-repeated maxim in the investing world: “the trend is your friend.” Republicans seem to be trending favorably for midterm elections. Politically, why would any Republican (even the squishy ones) do anything to disrupt this trend? If Republicans demanded something in return, such as enacting nationwide concealed carry reciprocity for law-abiding gun owners, then perhaps this conversation with the Democrats could be called a negotiation. Or how about subsidizing states that encourage permitless concealed carry?  Providing additional funds and more government bureaucracy to further encroach on the fundamental Second Amendment rights of the law-abiding sounds more like a surrender.

Those Republicans in favor of more gun control have abandoned their base and negotiated away their constituents’ fundamental Second Amendment right to keep and bear arms.

Mark W. Smith is a law professor, constitutional attorney, and host of the Four Boxes Diner YouTube channel addressing Second Amendment scholarship and history. He is a bestselling author of six books including First They Came for the Gun Owners and #Duped: How the Anti-Gun Lobby Exploits the Parkland School Shooting.

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