I’ve been following the back-and-forth between brilliant lawyers like Alan Dershowitz and his former law student David French. I’m becoming more and more convinced that the discussion about “red flag” laws, or Emergency Violence Restraining Orders (EVROs) or “gun-violence restraining orders,” is dealing in legal hypotheticals. Supporters tend to start with assumptions that don’t withstand the weight of political and societal reality, like “assume a trusting society.”
Dershowitz called “red flag” laws “predictive” and a “dangerous precedent”, writing in the Wall Street Journal.
Red-flag laws risk setting a dangerous precedent. If the government can take your guns based on a prediction today, what will stop it from taking your liberty based on a prediction tomorrow?
In a National Review rebuttal, French countered that restraining orders and taking away gun rights for convicted felons make “red flag” laws no precedent at all. “In some circumstances you should lose access to firearms for a limited period of time. This is a reasonable response to evidence of a threat,” he wrote.
The more I think about this, in real world terms, the more I’m skeptical of how “evidence” can apply with any certainty. In reality, an ERPO will bar someone from buying a gun or take guns from them for an unknown period until a judge decides. This is rife with uncertainty.
My biggest concern is that only a law-abiding person who likely doesn’t deserve an “emergency” will give up peacefully. We don’t need an ERPO for a grandma to take her grandson to the (psych) hospital, or parents/teachers/kids to see Johnny has posted a “kill list” online. In fact, there are plenty of foiled plots based on this kind of evidence. When these things happen, we have procedures to lock down schools and take Johnny into custody. We see those procedures used frequently and they work and we sigh with relief.
Where is the bar lower for those who already slipped through the cracks? Who on 8chan will report their comrade for doing what they’re all fantasizing there? The authorities already seek to monitor and infiltrate such groups. So we now open up the legal process to restrain someone or remove their property because a stranger observed something?
Who will use the ERPO? Will it be people who know the target individual, who fear for their OWN safety? Will it be ex-wives, ex-girlfriends, or others who may have a reason to fear for themselves (and there’s a law to protect them, imperfect as the protection may be), but not for a mass shooting? Will it be a stranger in the line at the gun shop who observed some “strange” behavior or remarks?
If the stranger reports the guy in line at the gun shop, and he’s wrong (after the man has lost his guns, or his liberty), is there a cause of action against the person who reported him? If so, will that not dampen the instinct to report your neighbor, who might then sue you for it? Will there be “Samaritan” protections for those who report people for ERPO’s? How will that work?
And there will be targeted political statements where grease-pencil judges sign off on newspaper fodder. Then you will have CNN show up for the SWAT takedown and broadcast while someone publicly known, whose ideology is repugnant but not really a “red flag” killer, have their guns removed.
Or we will have another Waco.
I can’t think of a “red flag” scenario where another Waco or Ruby Ridge won’t happen. And they will likely happen more frequently. What then? Where do you go?
Any apocalyptic cult with an arsenal of guns would be an automatic “red flag,” and in comes BATF, or the local cops under an ERPO to relieve them of their weapons. Or the prepper neighbor with 55-gallon drums of treated water under his porch, a few kits like they sell on late-night Fox News shows, and a big gun safe will automatically become the Las Vegas shooter. He might even own a bump stock.
When the police show up in force to relieve him of his property, he may not surrender peaceably. And then he’s dead, having committed no crime except being a fringe believer in the fabric of society’s ultimate fraying.
After a number of these events, we will have proven the left’s theory that gun-toting people with “hateful” ideologies are inherently dangerous. And when Democrats control our government one day, that “common sense” fact will be used to limit everyone’s liberty and hand power to the government that the government should not have–namely, the power to convict and punish someone on the word of a “denouncer.”
The biggest red flag I see here isn’t the one of potential killers. It’s the one from our society that depends on mutual trust of each other and our government.
Of course I want to see the kinds of laws like “red flag” or ERPOs to protect the public. I am just as enraged and upset as anyone that a man walked into a Walmart and shot at babies, and fired bullets into the heads of people begging for their lives and praying. Anyone who isn’t saying “do something!” at that is emotionally damaged (perhaps by war).
I want the government to “do something,” and I want to feel protected and in fact have others protected from killers. But the hypothetical legal discussions don’t move us any closer to a real world solution. “Assume a trusting society” is a poor starting place.