State Legislators Concerned about Constitutional Rights in Firearms Regulation

Published March 18, 2019

The Virginia legislature rejected a proposed law that would have allowed courts and police to remove firearms temporarily from persons they consider a danger to themselves or to others.

In response to the shooting at Florida’s Marjory Stoneman Douglas High School in February 2018, several state legislatures have considered “red flag” legislation, and the number of states that allow such “extreme risk protection orders” has increased from five to at least nine.

Some legislators are expressing concerns such laws violate the constitutional rights of gun owners and potential gun buyers. In addition to the Second Amendment guarantee that “the right of the people to keep and bear arms” shall not be infringed, the Fifth Amendment to the U.S. Constitution states “no person shall … be deprived of life, liberty, or property without due process of law.”

‘Slippery Slope into Abuse’

In Wisconsin, some legislators have called for caution in considering such legislation, says Matt Kittle, an investigative reporter at the MacIver Institute.

“Some constitutional conservatives … see a slippery slope into abuse of power,” said Kittle.

For example, “[Wisconsin state rep. Mary Felzkowski] is worried a red flag bill could take away due process,” said Kittle.

“I don’t think I can support any legislation going forward that intentionally strips people of their constitutional rights,” Felzkowski wrote in a recent tweet. “I think we need to be very careful, especially in our present society.”

‘No Specific Rules’

One problem with red flag laws is insufficient procedural safeguards, says economist John Lott, president of the Crime Prevention Research Center and a policy advisor to The Heartland Institute, which publishes Budget & Tax News.

“Somebody who knows you … can complain to the police or the police can complain and they can go and get a warrant from a judge without a hearing to take away your guns,” said Lott. “[Or] they have a hearing, but there are no specific rules that have to be followed in terms of criteria that are met before you can have your guns taken away.”

There are already laws in place prohibiting those convicted of a crime from purchasing or owning a firearm, but some advocates of red flag laws want to put more people at risk of running afoul of those laws, says Lott.

“We already have laws based on criminal history: if you have a felony, you lose your right to own a gun for the rest of your life, even if it’s a nonviolent felony, and, depending on the state and federal law, even [for] a misdemeanor you can lose the right to own a gun,” said Lott.

“Gun control advocates don’t want to have that type of restriction on them in terms of deciding who should be able to have their guns taken away,” Lott said.

Laws Should ‘Disarm Criminals’

Research has not found such “protective orders” to be effective, says Lott, who coauthored a recent study, “Do Red Flag Laws Save Lives or Reduce Crime?”

The study found red flag laws had no significant effect on rates of murder or suicide, the number of people killed in mass public shootings, robbery, aggravated assault, or burglary, says Lott.

“Everyone wants to do something to stop mass public shootings, but we also have to be careful that the gun control laws primarily disarm criminals, not law-abiding citizens,” said Lott. “There has to be reasonable evidence that the regulations reduce crime.”

Sarah Quinlan ([email protected]) writes from New York City, New York.

Internet Info:

John R. Lott, Jr. and Carlisle E. Moody, “Do Red Flag Laws Save Lives or Reduce Crime?” working paper, Social Science Research Network, December 28, 2018: