With the mass murder of 18 people in Maine on Wednesday, gun control advocates are calling for more gun control laws. Right at the top of the list is a so-called Red Flag Law. Vice President Kamala Harris has already called for passage of Red Flag Laws and an assault weapon ban. Unfortunately, much of the gun control debate pushes proposals that would do nothing to stop the attacks they would supposedly solve.
The disappointing thing is that this discussion shouldn’t even be needed. Robert Card, the alleged murderer, threatened to murder people at a National Guard base. Such threats are a crime, and why wasn’t he already arrested?
In addition, Card was already involuntarily committed to a mental health facility for two weeks this past summer for “hearing voices” and making threats but was released.
In Maine in 2020, the state instituted a “Yellow Flag Law,” which allows only police, not family, neighbors, or friends, to flag the person thought to pose a danger to themselves or others. Unlike Red Flag Laws, they also require a mental health evaluation before a judge decides to take away a person’s guns. But like Red Flag laws, there is no hearing before a judge takes away a person’s guns. Given that the police were already alerted to the threats, it isn’t obvious what the Red Flag law would have added.
This discussion ignores that it has always been possible to take a dangerous person’s guns away. All 50 states and the federal government have civil or involuntary commitment laws that go by various names: the Baker Act in Florida, for example, or the 5150 code in California. They all require a mental health expert to evaluate the person, and hearings can occur immediately. If those facing a hearing can’t afford a lawyer, the judge provides them with one. Judges have a lot of flexibility when ruling. For instance, if the person on trial does not agree to voluntary psychiatric treatment, they may be committed involuntarily or have their guns confiscated.
But red flag laws remove all these due process protections. Based only on a written complaint, which could come from a relative, friend, neighbor, or police officer, a judge decides whether to take away a person’s guns. There is no ability to challenge claims or to offer testimony from a mental health care expert. Gun control advocates argue that the person should not even know that the judge may be deciding to take their guns. When a hearing finally takes place up to a month later, if the person in question cannot afford an attorney, they will not be provided with one.
When faced with the costs for a hearing, which may be up to $10,000, few people find that fighting red flag laws to keep their guns makes sense. Few defendants obtain legal representation, but the courts still overturn a third of the initial orders. The actual error rate is undoubtedly much higher because many wrongly prosecuted people don’t have a lawyer
People who truly pose a clear danger to themselves or others should be confined to a mental health facility or be required to seek treatment. Gun confiscation typically involves suicidal people. However, if someone is suicidal, they may choose to kill themselves in many other ways. Simply taking away a gun isn’t the answer.
Someone intent on violence may not even need a gun to inflict mass carnage. Are we going to also take away their cars? Gun control advocates find it much easier to conjure up new laws without protections than to fine-tune laws already on the books. They find that times of national grieving present an opportunity to push new measures through Congress.
The Washington Post reported that between May and June 2020, there were at least 18 cases of drivers deliberately ramming their vehicles into people. A couple of years ago, a man killed six and injured sixty-one by driving into a Christmas parade in Wisconsin. The truck attack in Nice, France, on July 14, 2016, claimed 86 people — two dozen more than the worst mass public shooting in American history. Only the 2015 mass shooting at a theater in Paris has claimed more lives — 130.
Guns make it easier to harm others, but they also make it easier for people to protect themselves. Guns stop crime five times more frequently than to commit them. In just the last few years, armed civilians have stopped dozens of what otherwise would have been mass public shootings and dozens more active shooting attacks.
Simply talking to others about your depression can be important in overcoming it. But with red flag laws in place, people may have been reluctant to discuss their mental state with others. Police officers also often experience work-related depression. They may bottle up their feelings for fear of losing their guns, and thus their jobs.
We don’t want a world where police make unannounced predawn raids or people lose their fundamental right to self-defense without a judicial hearing. For some, it’s a matter of life and death.
Under red flag laws, a judge acts on a merely written complaint. He doesn’t talk to the person making the complaint or the person it is made against.
Typically, a hearing must occur within a month after one’s guns are taken away. But many defendants can’t afford to hire a lawyer. Even if they can, they are likely to decide that keeping their guns isn’t worth the $10,000 that many attorneys will charge.
Making it easy to remove people’s guns without these protections can leave good law-abiding people defenseless. Andrew Pollack, who lost his daughter Meadow in the Parkland School attack, recently had a Red Flag used against him in Oregon by a neighbor. When he finally had his hearing in court, the judge didn’t even need to hear his side of the case, saying that there was no evidence that Pollack had threatened anyone. Unfortunately, while Pollack was disarmed, he faced a mountain lion outside his home in rural Oregon. His dog fought off the mountain lion long enough for Pollack to escape.
Gun control advocates keep pointing to surveys to prove that Americans overwhelmingly support “common sense” gun control measures, such red flag laws. But surveys compress complicated bills down to one-sentence oversimplifications. Typically, surveys ask people if they support laws that “allow guns to be temporarily confiscated by a judge from people considered by a judge to be a danger to themselves or others.” That seems reasonable, and Americans support such a law by somewhere between 2-1 and 3-1 margins. But involuntary commitment laws already allow this. Surveys fail to explain how red flag laws bypass normal legal and judicial processes such as cross-examination of witnesses and examination of evidence.
The CPRC conducted a different survey last year on “red flag” laws. After 1,000 likely voters were informed that there are no court proceedings before guns are confiscated and mental health experts are not consulted, support changed to opposition (29%-47%).
Finally, the survey asked if people prefer involuntary commitment laws or red flag laws. Respondents favored the current involuntary commitment laws over red flag laws by a 40%-33% margin.
Instead of new laws, why not properly enforce the existing laws.
Lott is the president of the Crime Prevention Research Center and the author most recently of “Gun Control Myths.”
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