In which I disagree with Ben Shapiro and others who support red flag gun laws. There are a number of reasons for my disagreement; here are some, in no particular order. They are, each of them individually, must less collectively, deal breakers.
There’s considerable concern—legitimately so—about going through due process to protect the rights of the individual being “accused” of mental instability or of being dangerous otherwise to folks with whom he might come in contact (home, shopping mall,…). If the man truly is that dangerous, though, the court process cannot act quickly enough to mitigate the situation in the real time during which the danger supposedly exists.
There’s the question of defining “mentally unstable” or of defining other parameters of actionable danger the man allegedly represents. Psychiatric problems have a myriad ways of manifesting, each unique to the man and to the environment in which he exists. A stroll through the Diagnostic and Statistical Manual of Mental Disorders (DSM-5 is the current edition) illustrates the problem: this is not something a layman can easily understand or apply—and it’s a layman, a cop initially and a judge finally, who will make the decision, for all the “expert witnesses” that will be brought by the conflicting parties to the case). Even assuming precise enough definitions and diagnoses, both assessments and treatments are concomitantly varied, and they’re slow to diagnose and slow to bring effect. The slowness to identify also prevents timely enough action to mitigate the situation in the real time during which the danger allegedly exists.
There’s the question of who makes the determination of the mental/criminal danger and of what the action should be. We’ve seen the outcome of government definitions (regardless of any DSM, it’s Government that writes the laws and the legal definitions)—the Gulag of Soviet Russia, the “reeducation” camps of the People’s Republic of China’s Mao Tse-tung and Xi Jinping. Pol Pot and Saddam Hussein didn’t bother with such niceties; those two just had their undesirables executed.
Each of those, too, constitute prior restraint—acting to limit the ability of a man to act before he acts. Such prior restraint is the stuff of tyranny. Yet we’re already seeing a ravening thirst on the part of our Progressive-Democrats to engage in prior restraint: those who disagree with them are variously racist, anti-immigration, excessively religious, and on and on.
There is no consideration of the rights of other members of the “dangerous” man’s household. Their Second Amendment rights would be grievously abused were weapons removed from that man’s household.
That rights abuse becomes dangerous, potentially lethally so, in the case of domestic abuse. The man’s—the household’s, the abused spouse’s, the child’s—access to weapons is blocked, but the abusive man is still in the house, now with a spouse and one or more children who’ve been denied any means of defense. And he’s angry from the accusation and the resulting restriction.
Related to this are divorce and child custody cases. Both of these classes of case are rife with (which is not to say universally so) one or both parties vilifying the other in order to gain advantage in the divorce or child custody. This is an environment that begs for the abuse of false, or even just emotionally-driven erroneous, accusations of a danger necessitating taking away the weapons.
There’s the false positive: the man is accused and then found not to be the unstable or otherwise dangerous individual originally believed. How does he get his destroyed reputation back? The blowback for a false accusation of which Shapiro spoke cannot restore the destroyed reputation. The blowback can only get a sum of money—which has little value to a man whose reputation has been shredded.
There is, also, the false negative: the man is incorrectly found not to be the unstable or otherwise dangerous. Now he’s not only still dangerous, but he’s been warned that he’s being watched. And perhaps seeking vengeance for the accusation, or his potential actions made even more lethal, and more likely.
All of this, too, results in targeting the tool; the man who might use the tool is considered only secondarily, if at all.
Then there’s the constitutionality of the matter. Here’s the Second Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
There’s nothing in there—not a syllable—remotely resembling a but for. There is no phrasing suggesting “except when Government, or a Government-appointed body, decides a man might be dangerous some time in the future.” The right to keep and bear Arms shall not be infringed. Full stop.
Finally, there’s the matter of limiting principles. Red flag laws—gun control laws in general—do not carry with them any articulation of a limiting principle that says the law or the evolution of the law goes thus far and no farther. There is no articulation of a natural limit that blocks further restriction even were the relevant authority wishing to go farther. The law will just continue to have its definitions and restrictions broadened and tightened in accordance with the wishes—well-intentioned or other—of succeeding administrations.
Shapiro said in his The Ben Shapiro Show, as cited by Fox News, that
partisan anger and political abuse of proposed red-flag gun laws could lead to a power grab by the government if statutes and regulations aren’t instituted properly.
Indeed. And as just laid out, those statutes and regulations cannot be instituted properly. It’s an impossible task.
Shapiro went on:
This is why I say that when the left targets everybody on the right as a potential shooter or a supporter of a shooter, they’re undermining the ability to actually pass laws that could actually do something about this stuff. So, normally we should all be able to agree on a red-flag law.
Again, no. We are not able to agree on a red-flag law. Not ever. But not because the Left will always be with us, trying to take our guns away from us on any excuse at all, or because the Right will always be with us saying don’t touch our guns in any way whatsoever.
Rather because safeguards do not, cannot, exist. To paraphrase James Madison, hopefully not too badly,
If men were angels, no Arms would be necessary.
We’re not angels. We’re men, individual citizens, and operators of government. Imperfect men. The Second Amendment is our only protection. The limiting principle there is clear: shall not be infringed, with no caveats or exceptions.