Some Republicans in Congress are seeking to pass a “red flag law,” which would grant law enforcement to do what legal precedent has rarely permitted — forcefully enter homes and confiscate lawful firearms without any evidence of a crime.
The effort is being led by members such as Sen. Lindsey Graham (R-S.C.) and Rep. Adam Kinzinger (R-Ill.). Beyond the bite such a law would take out of the Fourth Amendment’s protection against unreasonable search and seizure, it would permit the government to override both the Second Amendment — which guarantees the right to possess a firearm — and the 14th Amendment, which requires the government to provide “due process” based on “equal protection” before it may take a person’s property or otherwise abridge their fundamental rights.
The trigger for such confiscatory power is not that the person committed a crime with a firearm; but rather that someone fears he or she might do so. This is, of course, a legitimate concern, but one that must not cavalierly be cast into law.
Any reasoned view of responsible government recognizes that there will be times law enforcement should act to prevent a crime from occurring, especially one likely to cause harm or death. The question is how and under what circumstances the government may so intervene. If we are to remain a nation “of laws not of men,” preventive government action always must be consistent with and not undermine existing constitutional provisions; including the Second, Fourth, 14th Amendments, and others.
Many of the 17 state-level red flag laws have been adopted since the February 2018 Parkland, Florida mass shooting; all are constitutionally defective to one degree or another. Many permit non-law enforcement individuals to apply for and obtain a gun confiscation order, and some are so permissive as to allow an order to issue based on evidence offered by telephone. All permit the granting of an order without opportunity for the targeted individual opportunity to be heard — otherwise normal “due process.”
Insofar as all such laws are designed to allow courts to issue confiscatory orders in situations involving “extreme risk,” a threshold inquiry should be whether the standard by which such orders are measured meets constitutional muster — in other words, precise and clear to individuals who might be affected. In the opinion of noted constitutional law expert Jacob Sullum, the standard underpinning all such laws are deeply suspect; ranging from “anybody’s guess” to “inherently vague.”
While most of these laws were adopted in the aftermath of the Parkland shooting, and more are being actively considered now in the wake of the El Paso and Dayton shootings, legitimate concerns have been raised about whether such laws are even necessary or, alternatively, whether they would have prevented the most recent mass murders.
As to the first question, considering the significant evidence that already had been available to law enforcement officials at the state, local and federal level that the Parkland shooter posed an imminent risk, and that firearms laws already likely had been violated, the answer must be that existing laws provided sufficient basis on which authorities legally could have taken steps to stop him. With regard to the question involving the more recent tragedies, evidence seems to support the premise that evidence available at the time would not have been sufficient to stop the murderous rampages.
If a red flag law like the one under consideration likely would not have prevented recent mass shootings, and is in fact unnecessary considering the robust powers already available to government, why then should we support it, considering the many ways such laws undermine constitutional protections? That is by far the most important question, and it is being afforded far too little consideration by state and federal officials.
Bob Barr (@BobBarr) represented Georgia in the U.S. House of Representatives from 1995 to 2003. He currently serves as president and CEO of the Law Enforcement Education Foundation.