The Intended Unintended Consequences of “Red Flag” Laws

by Michael G. Sabbeth, Esq.

photo from National Review Online August 26, 2019

The cliché phrase ‘unintended consequences’ is often an exercise in deceit and or incompetent thinking. The consequences of a policy illuminate its intentions. Good intentions are morally meaningless, and can be perverse, if they do not lead to virtuous consequences. Sometimes a policy’s consequences are so obviously egregious that the claim of good intentions is manifestly fraudulent. The most rational conclusion is that the policy’s malevolent consequences were intended as the price its advocates were willing to inflict in an alleged service to a higher cause. Gun Violence Restraining Orders (GVROs) and Extreme Risk Protection Orders (ERPOs), generically known as ‘Red Flag’ laws, are such policies that luminously disclose their intent.

Presently drafted Red Flag laws are a toxic stew of Constitutional abuses and wasp’s nest of procedural requirements that will predictably lead to violence without any societal benefit. Their defects have been persuasively presented in many insightful articles crafted by Second Amendment and gun violence data experts , such as Dave Kopel, research director, and Rob Natelson, Constitutional scholar, at the Independence Institute, Independence Institute. See David Kopel and Joseph Greenlee, Kopel Greenlee and Rob Natelson Natelson Constitutionality See also Michael Filozof , Gun Laws Would Do Nothing, and Massie and Lott, Jr. Red Flags Wrong Solution, Massie Lott Jr. Donald Kilmer Washington Examiner, describes the practical enforcement problems. red flag enforcement. Firearms will be confiscated from residents legally entitled to possess them when residing with a target of the ERPO.

These writers persuasively argue that Red Flag laws put our Constitution through a metaphoric Cuisinart by violating 1st Amendment: speech; 2nd Amendment; 4th Amendment search and seizures; 5th Amendment due process mandates and the 6th Amendment right to be confronted with the witnesses against an accused. The Petri dish for government abuse, overreach and incompetence is vast. In at least one instance, in Florida, the government knew the wrong person was cited in the warrant and yet proceeded with a firearms confiscation. See Mistaken Identity

Uniquely frightening and not addressed sufficiently is enthusiasm with which legislators and advocates trash our Constitution and dismiss foreseeable harm. I search for explanations. This statement from, On Stupidity: Letters and Papers from Prison, by Dietrich Bonhoffer, executed in 1945 for conspiring to kill Hitler, gives a partial explanation for the menacing mindset behind these laws.

“Stupidity is a more dangerous enemy of the good than malice. One may protest against evil…Against stupidity we are defenseless. … Reasons fall on deaf ears; facts that contradict one’s prejudgment simply need not be believed…. Never again will we try to persuade the stupid person with reasons, for it is senseless and dangerous.” With respect to Bonhoffer, I add the characteristics of avoidance of reality, moral cowardice and a reptilian opportunism for power.

An example of wishful thinking is exhibited by the usually reasonable David French, writing in National Review Online to advocate Red Flag laws. Trump Right. French wrote: “Gun rights supporters must make sure such laws are properly drafted.” This is like asking for help from the Tooth Fairy. For example, Kopel, who helped write the winning legal briefs in the landmark District of Columbia vs. Heller, Heller, testified before the US Congress and the Colorado legislature, wrote articles and spoke with Colorado legislators against Red Flag legislation. His wisdom and effort were rewarded in Colorado by the enactment of most onerous, Constitutionally-defective law in the United States. In this age of stupidity and worse, there is no way to make sure laws are properly drafted, whatever that means.

The red flag legislation assumes that its many component systems will work flawlessly: that petitioners will be honest and moral; that judges will act Constitutionally and without bias; that police executing search warrants will be restrained and disciplined; that homeowners will be reasonable under high-stress circumstances; that guns will be stored without theft or damage; and that firearms will be efficiently returned when appropriate.

Prudent functioning of these components is unlikely. The legislators know this. Police outfitted as if attacking Al Qaida in Mosul can smash into a dwelling, seemingly under ominous ‘no knock’ circumstances. Please understand that as of the moment the law in Colorado becomes effective, no person that has or is thought to have a firearm in its home can sleep securely because the breaking into the home by a criminal will be indistinguishable from the breaking home by the police. A homeowner with a firearm investigating the break-in will be shot. Some police will display discipline; some not. Although contrary to legislation and law, most search warrants, eagerly signed by judges, will vaguely describe the number and location of weapons in a dwelling. Note that a search warrant based on the allegation “He has lots of guns throughout the house.” gives legal license for police to search and destroy every cubic inch of a residence.

The legislation creates the situations that will justify the police wounding and killing homeowners. Everyone with an IQ higher than that of a Pet Rock knows it. The process is also Hegelian: the worse the situation gets, the greater the demand for and the justification for more government repression of individual liberty.

Of course, decent people seek solutions, even partial, to gun violence. A rational direction toward minimizing such violence is to hold accountable government officials, schoolteachers, administrators and parents that aid and abet these horrors by their silence, cowardice and laziness. The facts of Nidal Hasan at Fort Hood, the incompetence and laziness and perverse youth criminal protection ideology that pervaded the shooting Marjory Stoneman High School, among others, support my conclusion. Implementing accountability is difficult, perhaps impossible. Eroding the rights and privileges of law-abiding people is easy. The Red Flag advocates commit the human sin of taking the easy way. That is vile. That they know the laws will be useless and threaten real harm is worse.


Biography

Michael Sabbeth is a lawyer in Denver and author of The Good, The Bad & The Difference: How to Talk with Children About Values. He has a website: www.thehonorablehunter.com He lectures nationally and internationally on hunting ethics and rhetoric for defending and advancing hunting and the shooting sports. He writes for about a dozen hunting / shooting periodicals.