Are ‘Red Flag’ Laws Unconstitutional?
Both proponents and protestors of gun control in the United States have come to odds over legislation termed “red flag laws”, also known as “extreme risk protection orders” that would purport to protect Americans from the dangers of a gun in the wrong hands. While several states (17, to be specific) are already on board with utilizing these precautionary laws, the legislation has nonetheless met with hefty opposition from those who argue that the concept is unconstitutional.
What, exactly, is a red flag law? These laws, the first of which was enacted in Connecticut in 1999, are intended to provide an opportunity for family members or others close to a subject to petition a judge for the temporary removal of firearms from that individual. The reason for this petition would come from concern that the individual was a danger to themselves and/or others and therefore is in an unstable position not conducive to having a firearm.
Red flag laws have shown results, although it can be difficult to determine the exact effect the law had on the outcome of a perceived risk situation. For the most part, these laws have been more closely associated with preventing suicide than mass shootings or crimes against other humans. But the hope of advocates remains that this legislation can serve as a preventative measure that can safeguard citizens from harm.
However, much opposition still remains for these laws from those who believe that such measures are in violation of the 2nd Amendment. Much hotly contested debate has been had over this topic, and those opposing red flag laws argue that it is a slippery slope to give the government the right to take away a citizen’s gun without the presence of a crime.
Writing for The Hill, Andrew McCarthy proposes the viewpoint that these laws in fact do fall under constitutionality, citing the example of a judge not granting bail in the event that the subject was deemed a flight risk. However, the difference here is the presence of a crime.
But, McCarthy says, the key point to remember here is the Constitution and its Amendments are subject to interpretation and reasonable application for the time we live in. In McCarthy’s argument, judges are always tasked with making decisions that may or may not reflect the true intent of the person in question. By refusing to grant bond to a perceived flight risk, for example, the judge is using his or her judgement to determine the risk in order to achieve the end goal.
As for the black and white answer of whether or not red flag laws are constitutional, the jury is still out. For those in support, the precautionary nature and the success of the red flag law are two strong points that can be made. For another, the idea of the confiscation or ban being temporary is another “out” for those who would say that this inhibits on the personal freedoms of citizens.
But for many opponents, this isn’t enough. If there is no proof of a crime or of the planning of a crime, they argue, then there is not enough grounds to confiscate a weapon against the will of a legal owner. While the arguments in favor of such laws are quick to jump in and combat each point of contention, opponents will likely need much more in order to change their beliefs.
For one, the support of the National Rifle Association may hold some clout, as will the support of prominent conservative, pro-gun politicians. For now, the NRA has opposed red flag laws (although it has voiced support for the limiting of firearm access for dangerous individuals), which is a blow to the support base of these laws. However, the message the NRA puts out may well shift as more states enact these protections.
Finding middle, common ground on gun control will always be a battle, and it’s not one that’s likely to be resolved at any point in the near future. However, exploring the constitutionality of protections designed to eliminate or reduce threats is a worthwhile way to find a solution that will help protect the country and its citizens.
Red flag laws are a more recent addition to the roster of policies aimed at proactively preventing gun violence and protecting those who may be a danger to themselves and/or to others. But not everyone is in full support of such laws, as they may be interpreted as a violation of one’s 2nd Amendment rights. Who do red flag laws affect? Find out here.