For the first time in recent memory following a horrific mass shooting, there appears to be an emerging consensus of many elected Republicans and outside conservative voices that "something" must finally be done on the issue of guns. In particular, many Republicans seem eager to consider the state-level adoption and implementation of so-called "red flag" laws — otherwise known as "gun violence restraining orders" (GVROs). The popularity of "red flag" laws seemed to increase after National Review's David French endorsed them in the aftermath of the 2018 Parkland shooting, and President Donald Trump endorsed them this week in the aftermath of last weekend's mass shootings in El Paso, Texas and Dayton, Ohio.
While specific "red flag" laws will vary in their precise statutory wording, French summarized the basic statutory framework in his post-Parkland endorsement: "[B]roadly speaking, ['red flag' laws] permit a spouse, parent, sibling, or person living with a troubled individual to petition a court for an order enabling law enforcement to temporarily take that individual’s guns right away." The basic concept of the GVRO may be fairly analogized to that of a restraining order, in the context of family law.
GVROs are certainly well-intentioned. Indeed, more so than merely being well-intentioned, they would likely have a greater impact on curtailing gun violence committed by mentally twisted and deranged individuals than would, for example, grotesquely over-inclusive and illogical calls to ban entire new sub-classes of semiautomatic weaponry. Conservatives of different stripes can, and will, disagree on the prudential trade-offs and judgment calls involved with assessing a specific proposed GVRO's policy meritoriousness.
But at minimum, conservatives should be very, very skeptical of "red flag" laws.
Many "red flag" law supporters twist themselves into knots to explain how purportedly "well crafted" GVROs can comport with rudimentary, fundamental principles of due process. French, in particular, has carefully prescribed five criteria that he would seek to implement in a "properly drafted" GVRO. But even accepting the premise of a "properly drafted" GVRO law, there is simply no escaping the reality that the entire GVRO procedure flips due process on its head where a core constitutional right is at stake. As Dana Loesch aptly put it at The Federalist this week, "it is an abrogation of due process to invert the order of 'innocent until proven guilty' to 'somewhat guilty until proven innocent.'" GVRO advocates argue that the burden of proof must still fall on the party petitioning to confiscate the respondent's firearms — but the procedural reality is that the petitioner is still the first mover and, after that initial move, the onus shifts to the respondent to demonstrate his innocence. That is hardly an exemplary means by which to dispense with a cherished constitutional liberty, and it is made even more egregious in the context of "emergency" ex parte (i.e., one-party) proceedings — which GVRO advocates concede will be a reality.
It is worth breaking down the due process point a bit further, as I did in a tweet thread yesterday. Like many conservatives, I take a very narrow view of the Due Process Clause of the Fifth and Fourteenth Amendment. In accordance with what Justice Clarence Thomas has called the "law-of-the-land view" of the Due Process Clause, my belief is that the constitutional requirement for due process merely "requires ... that our Government ... proceed ... according to written constitutional and statutory provision[s] before depriving someone of life, liberty, or property" (as Justice Thomas phrased it in his dissent in the 2017 case of Nelson v. Colorado). Under this narrow view of constitutional due process, GVROs are fine.
But in our constitutional republic, black-letter legal exegesis is affirmatively not the only purpose that the Constitution serves. Consider this 2014 Yuval Levin piece at National Review, in which Levin cited University of Virginia's James Ceaser for the proposition that there are two distinct senses in which the Constitution must be understood:
The first sense — legalistic constitutionalism — understands the Constitution as a set of rules that can decide policies or cases; these rules are of a sort that can offer definitive answers and that could be employed and enforced by courts. The second sense — political constitutionalism — understands the Constitution as a document that fixes certain ends of government activity, delineates a structure and arrangement of powers, and encourages a certain tone to the operation of the institutions. By this understanding, it falls mostly to political actors making political decisions to protect and promote constitutional goals.
I believe "red flag" laws pretty clearly fail the "political constitutionalism" conception of what due process entails for a societally cherished and constitutionally enumerated individual right. The Framers would have been positively aghast at the notion that a next-door neighbor or workplace supervisor could successfully petition a court to deprive an individual of his Second Amendment rights — let alone in ex parte, secretive fashion — for up to two weeks before a gun owner may attempt to defend himself. To many, that may seem awfully reminiscent of the old English Star Chamber. And even more horrifyingly Orwellian is the on-the-ground reality that people have already died at the hands of law enforcement after they have been unwilling to turn in their GVRO-stripped firearms.
Is this really the world that conservatives — especially those of a smaller government hue — wish to live in? How about this great question that Loesch asks: "Will any considerations be given to women defending themselves against domestic abusers who might misuse the system to render their victims defenseless?" Where are the feminists here — don't GVROs disproportionately harm women, who are generally physically weaker than male counterparts and therefore more reliant on weaponry for self-defense? What about the notion that we will never be able to come even remotely close of ridding the system of false positives, as Harvard Law School professor emeritus Alan Dershowitz incisively points out at The Wall Street Journal? "How many law-abiding people are we prepared to deprive of guns to prevent even one mass shooting?" Dershowitz asks. It's a very good question.
And yet there is one even more basic objection to "red flag" laws. Conservatives must think about who will be tasked with actually adjudicating and enforcing GVROs: Courts. In what world, with judicial #Resistance run amok across the nation and a systemically rigged game against conservatives across the entirety of the judiciary, would conservatives be willing to play this game? The potential for abuse here is astounding. In blue states especially, but also in many red states, anti-gun fanatics populate large swaths of the judiciary. These black-robed oracles will oftentimes be massively incentivized to grant very weak petitioners the GVROs they seek, due mostly to an innately held animus against gun rights. What kind of far-left blue state judge would be willing to resist a sob story from a crazy girlfriend or an aggrieved workplace supervisor?
Gun owners tend to be cynical folks. I know because I am one. And GVROs will simply not end well for us gun owners — all of us, not just the crazy folks who should indeed not possess firearms.
If Republicans and conservatives feel the need to "do something" after El Paso and Dayton, they certainly have options. Why not start with national right-to-carry reciprocity legislation, which is clearly constitutional under Article IV of the Constitution?
Maybe somewhere out there, a Republican elected official is listening. But probably not.