At Townhall: Democrats Keep Pushing to Eliminate American’s Due Process Rights, Extreme Risk Protection Orders

Oct 27, 2021 | op-ed

Dr. John Lott co-authored this piece with Congressman Thomas Massie, who represents Kentucky’s Fourth Congressional District and is co-chairman of the Second Amendment Caucus.

Everyone wants to stop dangerous people from getting guns. To some, the obvious solution lies in Red Flag laws, also called Extreme Risk Protection Orders, that enable easy confiscation. The expansion of entitlements bill before Congress already contains $2.5 billion in incentives for states to adopt these laws, but the House Judiciary Committee, of which one of the authors is a member, will vote on a federal bill on Wednesday.

The votes will be along party lines, but it isn’t as if Democrats care about stopping violence and Republicans don’t. You would never know this from the media coverage, but the opposite is true.

All states and the federal government already have laws on the books that deal with people who are a danger to themselves or others. These laws are commonly known as Baker Act statutes, though they go by different names in different states. They allow police, doctors, and family members to have someone held for a 72-hour mental health examination based upon a simple reasonableness test – merely an educated guess or hunch.

These laws focus on mental illness, and they require that mental healthcare experts evaluate the individual. If a person can’t afford a lawyer, a public defender is provided. While judges can choose to involuntarily commit individuals who they believe are dangers to themselves or others, there is a broad range of other, less extreme options that involve monitoring or mental care.

But instead of using these laws, 17 states have now adopted Red Flag laws. Thirteen states adopted them since 2018, after the infamous Parkland, Fla. high school shooting. While Red Flag laws are discussed as mental health measures and are often promoted to prevent suicide, only one state’s law even mentions mental illness. None of the states require that a mental-health expert be involved in evaluating the person. The only option given to judges is to take away a person’s guns.

When faced with legal bills that can easily amount to $10,000 for a hearing and the worst that can happen is their guns will be taken away, few people find that it makes sense to fight Red Flag laws. Under Red Flag laws, initial firearms confiscations usually require just a “reasonable suspicion.” Judges will initially confiscate a person’s guns on the basis of a written complaint. When hearings take place weeks or a month later, courts overturn a third of the initial orders. But since few defendants have legal representation, the actual error rate is undoubtedly much higher.

When people pose a clear danger to themselves or others, they should be confined to a mental health facility. If someone is really suicidal, simply taking away his gun won’t solve the problem anyway. Guns are only one tool for inflicting harm. But gun control advocates want to make it appear as if taking away guns solves everything.

Red Flag laws harm people who need help. Absent such laws, a person contemplating suicide might speak to a friend or family member and be dissuaded from that dire course of action. With the laws in place, individuals may fear that confiding in someone will result in a report to the authorities. They may end up losing their ability to defend themselves or their loved ones.

Police officers often experience depression on the job. They too may worry about these laws being applied to them, which may lead to the loss of their livelihoods. Police may end up bottling up their feelings.

Red Flag laws also let the government take firearms away from people who have been arrested but not convicted of crimes. Even simple complaints without arrests have been enough for some judges. That seems like a violation of the constitutional right to due process. Gun-control advocates have resisted making this policy explicit in the laws, presumably out of fear that codifying suspension of due process would create problems in the courts.

Despite all of the costs, the evidence shows no benefits from Red Flag laws. Data from 1970 through 2017 don’t show any corresponding reduction in murder, suicide, mass public shootings, robbery, aggravated assault, or burglary rates. Lives weren’t saved.

Given the civil rights protections built into current mental health examination laws, let’s make use of these protections instead of enacting new, far-reaching measures that will confiscate guns instead of address the real underlying issues. If facilities need more money, let’s redirect the resources that are now being wasted on the administration of Red Flag laws.

John R. Lott, Jr. and Thomas Massie, “Democrats Keep Pushing to Eliminate American’s Due Process Rights, Extreme Risk Protection Orders,” Townhall, October 27, 2021.
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