Kelly Sloan

Kelly Sloan

It seems to be the case so far, whether by accident or design, that the state legislature highlights one exceptionally disputatious bill each week – national popular vote and sex education each had their turn, now the new iteration of the “red flag” bill is preparing for its hours in the limelight.

Red flag bills, or extreme risk protection orders, are efforts to permit law enforcement to temporarily remove firearms from the possession of those whose mental state represents a clear and imminent threat to the public or to themselves – in other words, keeping guns out of the hands of dangerously crazy people. Now that on the surface seems eminently reasonable, but of course such a proposition offers a lot of room for mischief.

Few issues, save perhaps abortion, so sharply delineate partisan battle lines as do any concerning guns. Part of it touches on the empirical – do gun laws actually accomplish anything? The available data are not encouraging. Some is cultural, roughly aligned along a rural/urban divide – among rural citizens guns are a necessary and valuable tool, whereas many urban dwellers these days regard them as fearful objects seen only in movies, kind of like Godzilla.

But the most illuminating factor is philosophical, the centuries-old debate over the relative supremacy of collective vs. individual rights. On this point my own presumptions tend towards the latter. But I depart, slightly and haltingly, from the orthodoxy inasmuch as I reject absolutist interpretations of the Second Amendment with as much fervor as I do those of the First, i.e., those which tell us without a trace of mirth that uttering a prayer at a school assembly will lead inextricably to the establishment of a theocracy.

Extreme risk protection orders, properly and carefully crafted, can be useful tools for the prevention of crime and the provision of public safety, the primary and most legitimate role of government. Conservatives and gun owners have long – and correctly – advocated for keeping weapons out of the hands of the mentally unstable, recognizing that crime has diddly-squat to do with hardware and everything to do with the intent and mental state of the person committing the crime. Even the ultra-individualist Anti-Federalists conceded this, in Provision 7 of their demand for a Bill of Rights, from which the Second Amendment ultimately derived, which states “the people have a right to bear arms for the defense of themselves and their own state or the United States… and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals.”

No right is, or can be, absolute, as the ACLU needs constant reminding. The First Amendment proscription demanding Congress “make no law … abridging freedom of speech,” for instance, seemingly contradicts libel and slander laws; and my Sixth Amendment right to a “compulsory right for obtaining witnesses” does not square neatly with your Fifth Amendment right to decline to be a witness against yourself. The exegetes tend to fall back on the slippery-slope argument – if you give an inch they will take a mile. That argument is generally the purview of the fanatical left, and tends to run afoul of reality, rejectable on grounds of absurdity.

Rejecting the slippery-slope argument, in relation to the current Red Flag contentions, would be far easier to defend if the anti-gun lot would temper their appetites, but the monopoly on power is a difficult thing to pass up for ideologues on either side; consequently, rather than simply limit themselves to advancing a reasonable ERPO that recognizes and respects due process, civil liberties, and practical considerations, proponents have elected to overplay their hand.

The faults with the current bill have been written about in greater detail elsewhere, but suffice to say that two glaring problems stand out, the first being the transfer of the burden of proof onto the respondent; by definition, ERPO’s seek to address societal outliers – the aberrations, rather easily identifiable as threats. It is not an impositional burden on the state to take on the responsibility of proving that which is inherently self-evident.

Second, is the worrisome potential for abuse or weaponization by a disaffected party. Consider the following scenario: an abusive ex-boyfriend is finally kicked out of a home by his courageous victim; he subsequently tells law enforcement, perhaps citing some angry activity exhibited during the last confrontation, that the young woman is crazy — and, by the way, in possession of a gun — using this new law to effectively disarm her. The mind need not wander far to imagine the darkest potential consequences.

Rejection of absolutist entrenchment need not devolve into the relativism that has caused so much injury to our constitutional system, and localized political considerations are what they are. Yet, single-issue obsession inhibits perspective, and the fear lingers that the same rigidity that prevents any mention of God at a commencement ceremony, and denies passage of a bill to protect the life of an infant who survives an abortion, will not only also prevent a reasonable tool for temporarily disarming the dangerously mentally ill, but instead impose on us a legal weapon that could unwittingly disarm a victim unless she can prove to a judge she has never met that she is not crazy, but in fact at risk.

Kelly Sloan is a political and public affairs consultant and recovering journalist based in Denver. He is also an energy and environmental policy fellow at Centennial Institute.

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