For the first time in recent memory following a horrific mass shooting, there appears to be an <a href="https://www.dailywire.com/news/50321/republicans-move-take-most-significant-gun-control-james-barrett">emerging consensus</a> of many elected Republicans and outside conservative voices that &#8220;something&#8221; 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 &#8220;red flag&#8221; laws — otherwise known as <a href="https://www.nationalreview.com/2018/02/gun-control-republicans-consider-gvro/">&#8220;gun violence restraining orders&#8221;</a> (GVROs). The popularity of &#8220;red flag&#8221; laws seemed to increase after National Review&#8217;s David French <a href="https://www.nationalreview.com/2018/02/gun-control-republicans-consider-gvro/">endorsed</a> them in the aftermath of the 2018 Parkland shooting, and President Donald Trump <a href="https://www.nationalreview.com/2019/08/donald-trump-is-right-to-call-for-red-flag-laws/">endorsed</a> them this week in the aftermath of last weekend&#8217;s mass shootings in El Paso, Texas and Dayton, Ohio.
While specific &#8220;red flag&#8221; laws will vary in their precise statutory wording, French <a href="https://www.nationalreview.com/2018/02/gun-control-republicans-consider-gvro/">summarized</a> the basic statutory framework in his post-Parkland endorsement: &#8220;[B]roadly speaking, [&#8216;red flag&#8217; 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.&#8221; 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 <a href="https://www.dailywire.com/news/50263/hammer-conservatives-must-not-go-soft-assault-josh-hammer">calls to ban entire new sub-classes</a> 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&#8217;s policy meritoriousness.
But at minimum, conservatives should be very, very skeptical of &#8220;red flag&#8221; laws.
Many &#8220;red flag&#8221; law supporters twist themselves into knots to explain how purportedly &#8220;well crafted&#8221; GVROs can comport with rudimentary, fundamental principles of due process. French, in particular, has <a href="https://www.nationalreview.com/2019/08/donald-trump-is-right-to-call-for-red-flag-laws/">carefully prescribed</a> five criteria that he would seek to implement in a &#8220;properly drafted&#8221; GVRO. But even accepting the premise of a &#8220;properly drafted&#8221; GVRO law, there is simply no escaping the reality that the entire GVRO procedure flips due process on its head where a core <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf">constitutional right</a> is at stake. As Dana Loesch aptly <a href="https://thefederalist.com/2019/08/06/red-flag-laws-not-good-solution-mass-shootings/">put it</a> at The Federalist this week, &#8220;it is an abrogation of due process to invert the order of &#8216;innocent until proven guilty&#8217; to &#8216;somewhat guilty until proven innocent.'&#8221; GVRO advocates argue that the burden of proof must still fall on the party petitioning to confiscate the respondent&#8217;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 &#8220;emergency&#8221; ex parte (i.e., one-party) proceedings — which GVRO advocates <a href="https://www.nationalreview.com/2019/08/donald-trump-is-right-to-call-for-red-flag-laws/">concede</a> will be a reality.
It is worth breaking down the due process point a bit further, as I did in a <a href="https://twitter.com/josh_hammer/status/1159101506920034305">tweet thread</a> yesterday. Like many conservatives, I take a <a href="https://twitter.com/josh_hammer/status/1159102556540481536">very narrow view</a> of the Due Process Clause of the Fifth and Fourteenth Amendment. In accordance with what Justice Clarence Thomas has called the <a href="https://twitter.com/josh_hammer/status/1159102556540481536">&#8220;law-of-the-land view&#8221;</a> of the Due Process Clause, my belief is that the constitutional requirement for due process merely &#8220;requires &#8230; that our Government &#8230; proceed &#8230; according to written constitu­tional and statutory provision[s] before depriving someone of life, liberty, or property&#8221; (as Justice Thomas phrased it in his dissent in the 2017 case of <a href="https://www.supremecourt.gov/opinions/16pdf/15-1256_5i36.pdf">Nelson v. Colorado</a>). 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 <a href="https://www.nationalreview.com/corner/how-our-democracy-works-yuval-levin/">piece</a> at National Review, in which Levin cited University of Virginia&#8217;s James Ceaser for the proposition that there are two distinct senses in which the Constitution must be understood:
<blockquote>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.</blockquote>
I believe &#8220;red flag&#8221; laws pretty clearly fail the &#8220;political constitutionalism&#8221; 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 <a href="https://thefederalist.com/2019/08/06/red-flag-laws-not-good-solution-mass-shootings/">up to two weeks</a> 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 <a href="https://www.theblaze.com/news/2018/11/06/maryland-police-officer-shoots-kills-man-being-served-with-gun-grab-order-under-new-red-flag-law">already died at the hands of law enforcement</a> 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 <a href="https://thefederalist.com/2019/08/06/red-flag-laws-not-good-solution-mass-shootings/">asks</a>: &#8220;Will any considerations be given to women defending themselves against domestic abusers who might misuse the system to render their victims defenseless?&#8221; Where are the feminists here — don&#8217;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 <a href="https://www.wsj.com/articles/a-yellow-light-for-red-flag-laws-11565132144">points out</a> at The Wall Street Journal? &#8220;How many law-abiding people are we prepared to deprive of guns to prevent even one mass shooting?&#8221; Dershowitz asks. It&#8217;s a very good question.
And yet there is one even more basic objection to &#8220;red flag&#8221; laws. Conservatives must think about who will be tasked with actually adjudicating and enforcing GVROs: Courts. In what world, with <a href="https://www.dailywire.com/news/42341/hammer-it-past-time-trump-openly-defy-court-order-josh-hammer">judicial #Resistance run amok</a> across the nation and a <a href="https://www.dailywire.com/news/49913/hammer-conservatives-how-much-longer-are-you-josh-hammer">systemically rigged game</a> 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 &#8220;do something&#8221; after El Paso and Dayton, they certainly have options. Why not start with national right-to-carry reciprocity legislation, which is <a href="http://www.stevesachs.com/HR38_SachsBarnettBaudeLtr_20170323.pdf">clearly constitutional</a> under Article IV of the Constitution?
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<blockquote class="twitter-tweet">Why is the new GOP policy talking point not right-to-carry national reciprocity legislation (clearly constitutional under Art. IV Full Faith and Credit Clause) instead of constitutionally questionable “red flag” legislation?
— Josh Hammer (@josh_hammer) <a href="https://twitter.com/josh_hammer/status/1159167792182104064?ref_src=twsrc%5Etfw">August 7, 2019</a></blockquote>
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Maybe somewhere out there, a Republican elected official is listening. But probably not.

HAMMER: Conservatives Should Be Very Skeptical Of ‘Red Flag’ Laws

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On Tuesday, Daily Wire Editor-at-Large Josh Hammer — who is also a constitutional attorney specializing in religious liberty — <a href="https://www.youtube.com/watch?v=AgB0ycTAbYI">joined</a> &#8220;Tipping Point With Liz Wheeler&#8221; on One America News Network (OANN) to discuss a <a href="https://www.dailywire.com/news/49234/hammer-here-legal-reason-why-trump-must-ask-about-josh-hammer">Daily Wire op-ed</a> he had written earlier this week about the legal fallout from the U.S. Supreme Court&#8217;s census citizenship question decision in <a href="https://www.scotusblog.com/case-files/cases/department-of-commerce-v-new-york/">Department of Commerce v. New York</a>.
In Department of Commerce, Chief Justice John Roberts joined the Court&#8217;s liberal bloc to temporarily enjoin the Trump administration from including the citizenship question on the census. But as Hammer argued in his op-ed, there appears to be an obscure constitutional rationale, buried in the text of the little-used second <a href="https://www.law.cornell.edu/constitution/amendmentxiv">section of the Fourteenth Amendment</a>, that may actually require the president to include the citizenship question on the census.
Here is the the relevant text of the second section of the Fourteenth Amendment, with emphasis in bolded italics: &#8220;But when the right to vote &#8230; is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.&#8221;
Hammer explained to Wheeler why this textual provision is so important for the Trump administration&#8217;s continuing efforts to include the citizenship question on the census.
<blockquote>&#8230; The Fourteenth Amendment is probably the most frequently invoked amendment for constitutional litigation, in general, but probably &#8230; 97% to 98% of that litigation is in Section 1 of the Fourteenth Amendment. There are actually five sections. Section 1 involves all the clauses that people are familiar with: It&#8217;s the Equal Protection Clause, the Due Process Clause — all the clauses that you hear about. &#8230;
But there&#8217;s actually five sections and Section 2 is just as legally effective as Section 1, by definition &#8230; and what Section 2 of the Fourteenth Amendment very clearly says is that when a state abridges the right to vote for a certain subset of male, 21-year-old citizens, then there&#8217;s a penalty for that. You can&#8217;t do that, and &#8230; the formula for the penalty is that you have reduced representation in Congress from the next census. And the formula for determining that reduced representation is a fraction, where both [numbers] require citizen-by-citizen data. &#8230; Essentially, your representation is reduced by the proportion of who is is denied this right to vote — male 21-year-old citizens [who have their vote abridged] divided by the total number of male 21-year up citizens. &#8230;
[F]rom a very plain English standpoint, &#8230; the Constitution literally says that we need to know if there are 21-year-old male citizens in a state who are having their right to vote abridged, and it is the word &#8220;shall&#8221; that is used. In lawyer world, the word &#8220;shall&#8221; means the same thing that it means in plain English world: It is a direct affirmative mandate. This is not like a wishy-washy m-a-y &#8220;may,&#8221; it is &#8220;shall.&#8221;</blockquote>
From a constitutional perspective, then, &#8220;we literally need to know the number of citizens in each state for possible penalization of a state for abridging the right to vote for its male 21-year-old citizens,&#8221; he continued.
Hammer concluded his thoughts to Wheeler by discussing what the next legal steps for the Trump administration should be. Hammer urged that President Trump issue a straightforward executive order that unilaterally invokes the second section of the Fourteenth Amendment as justifying — indeed, mandating — the inclusion of the citizenship question on the census.
<blockquote>I mean the words are very clear. The word &#8220;shall&#8221; means &#8220;shall&#8221;: It is an affirmative obligation that the federal government have this data. So what Trump should do is actually very straightforward. I hope his lawyers are watching this. All you need to do is issue an executive order literally invoking Section 2 of the Fourteenth Amendment and saying that, &#8220;Pursuant to the constitutional authority vested in me, I, President Donald Trump, hereby require that citizenship data be include in the next census.&#8221; It&#8217;s really that simple.</blockquote>
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WATCH: Hammer On ‘Tipping Point With Liz Wheeler’: Why Trump MUST Ask About Citizenship On The Census

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HAMMER: Conservatives Should Be Very Skeptical Of ‘Red Flag’ Laws

WATCH: Hammer On ‘Tipping Point With Liz Wheeler’: Why Trump MUST Ask About Citizenship On The Census