Gun-controllers often call for enhanced gun violence prevention orders. These so-called “red flag” laws are court orders that can limit an individual’s ability to buy or possess a firearm, ostensibly so that a dangerous person can be barred from arming up and harming innocent people. Like many gun proposals, these tools superficially seem like a reasonable ask; no one wants dangerous people to be armed. But this has mutated into a rhetorical trap that gun-controllers use in debates to make gun-rights activists appear unreasonable. “Don’t you want to keep guns out of the hands of dangerous people?” these individuals will ask as they try to stigmatize guns and ratchet one more increment of restrictions on civil rights.

 

“Don’t you want to keep guns out of the hands of dangerous people?”

 

While many of us have differing opinions on these red flag laws, we have an opportunity to frame the discussion in a constructive way that preserves not only gun rights but rather all rights. You have to be prepared to discuss them in a way that paralyzes gun-controllers as they try to corner you in a debate.

Even if we agree in principle that the state should have the ability to disarm a truly dangerous person (and the state already does), the problems arise in execution and management — and in the potential unintended consequences of these orders. We know this because orders have been used in many states across the country for decades under a variety of statutory names, usually in a domestic violence context.

It Isn’t Really About the Second Amendment

Illustration By: Brian Fairrington

Limiting someone’s liberty and property transcends far beyond just the Second Amendment. In this country, you cannot have your liberty or property taken without due process of law — meaning that you have to be given procedural protections proportional to the amount being taken. There is an important distinction between barring someone from buying a new gun (background-check flagging) and forcing a person to give up guns he or she already owns (prohibited from possession). There is a further distinction on forcing entry into a person’s home to take those guns (seizure).

Note that background-check flagging can easily backdoor a justification for universal background checks, a gun-control initiative that converts the right to bear arms into just a privilege, and suddenly the red flag discussion becomes much more about the Fourth Amendment than the Second. When a gun-controller brings up these bans, we should always question how far-reaching the bans will be and what burden of proof the accuser or state must meet to get them approved.

Consider three basic scenarios which could trigger such an order:

  • A domestic violence incident in which an abusive spouse threatens to kill himself and the victim if she leaves
  • An escalating dispute between neighbors in which one neighbor has threatened violence and brandished a weapon
  • A college student posting comments on social media praising past mass murderers and expressing intent to do “something big”

Addressing the Obvious

A key violence-prevention concept with red flag laws is that if a person is scary enough to disarm, he or she is probably scary enough to lock up through either criminal or involuntary psychiatric channels. Efforts should primarily be focused on that, as the person is the dangerous element in the equation. Essentially, since protection orders are typically just derivatives of restraining orders, we should keep and strengthen restraining orders and recognize their principal limitation: that dangerous people stay dangerous regardless of whether they are flagged on a background check or there is a court order mandating that they avoid someone. The weakness of restraining orders is a core argument for personal defense and personal gun rights.

 

Dangerous people stay dangerous regardless of whether they are flagged on a background check or there is a court order mandating that they avoid someone.

 

It is also imperative that we sort out how such an order would effectively address each of these scenarios while protecting people from false and harassing accusations, so we also need to sort out procedural protections for an individual who has had an order levied against him or her. This is tough, as vague threats are difficult to prove and sometimes no crime has been committed. What standard of proof does someone need to meet to request an order? How do we ensure these orders are not abused by an individual trying to harass an otherwise safe and lawful gun owner? Do these orders expire? If a person has been falsely accused, can he or she challenge the order in a meaningful way? These questions can help you drive the conversation in a debate.

Still Just a Piece of Paper

Gun-controllers seem obsessed with guns, but anyone who understands violence understands that guns are one of many weapons available to a dangerous person. Any protection-order law should be crafted to focus attention on the dangerous person, and we should consider whether we are actually protecting the potential victims of that person with such an order. Some form of restraining order with a gun restriction may be appropriate, but it needs to have meaningful due process protections built in. We can agree in principle that dangerous persons should be disarmed, but there is more to it than that. Perhaps the best way to neutralize the threats they pose is with more meaningful intervention than a court order.


Doyle is a concerned citizen and gun rights advocate. His opinions are his alone and do not reflect the official policy or position of his or any other agency. References and links to other gun advocacy sites do not imply endorsement of those organizations. He can be reached by email at [email protected].