Red Flag Laws

Harlan Tonuke Archer

02/21/2020
Submitted in Partial Fulfillment of the Requirements for
the Global Awareness Passage
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America is a country of choice: abortion or murder?, free speech or hate speech?,

homosexuality or sinning?, self-defense or defenselessness? Gun ownership should be a choice.

People have the right to own a gun to defend themselves and their property, even though some do

not believe in the right to own a gun. However, there are exceptions: those who are too mentally

unfit to own a weapon of any kind. Red Flag Laws are the newest form of gun seizure and

violence prevention with regard to mental illness. A person’s gun can be seized if there is a call

from someone alerting officials that they are dangerous to themselves or others. Police then can

go into the home and seize any weapons they find. Even though well-intentioned, Red Flag Laws

are subject to harsh human error and therefore are not the best solution to keeping firearms out of

the hands of unfit people.

The Second Amendment of the United States Constitution states: “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” (“The Constitution”). The right to gun ownership is a constitutional

and individual right, as defined in the Second Amendment of the United States Bill of Rights.

Whether it is the right of a militia, such as a police force or the national guard, to keep and bear

arms, or if it is the right of an individual citizen to keep and bear arms has been heavily debated

for hundreds of years.

The following are opinions of founders, writers, and signers of the Constitution during

the creation of this amendment. Noah Webster was a framer and signer of the Constitution. In his

essay written to support the new Constitution entitled “An Examination of the Leading

Principles of the Federal Constitution”, in 1787, he stated:

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Before a standing army can rule, the people must be disarmed; as they are in almost

every kingdom in Europe. The supreme power in America cannot enforce unjust laws by

the sword; because the whole body of the people are armed, and constitute a force

superior to any band of regular troops that can be, on any pretense, raised in the United

States. A military force, at the command of Congress, can execute no laws, but such as

the people perceive to be just and constitutional; for they will possess the power, and

jealousy will inspire the inclination, to resist the execution of a law which appears to

them unjust and oppressive. (Straub)

Here Webster is making it clear that it is the right of the individual to keep and bear arms to

protect themself against a government that may pass unjust laws. Richard Henry Lee, wrote in

Additional Letters From The Federal Farmer, 53, in 1788: “To preserve liberty, it is essential

that the whole body of people always possess arms, and be taught alike, especially when young,

how to use them” (Straub). Once more a founder has specifically stated that the populus must be

armed, and must be properly trained with those arms. Another framer, Samuel Adams stated, in

the Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, in 1850,

“That the said Constitution shall never be constructed to authorize Congress to infringe the just

liberty of the press or the rights of conscience; or to prevent the people of The United States who

are peaceable citizens from keeping their own arms”(Straub). Debates on the Second

Amendment have been an active topic in America since its inception. Here Samuel Adams is

quoted in stating that the Second Amendment is a critical addition to the Constitution - a

document that protects the rights of the people. And finally, in the Jefferson Papers, Thomas

Jefferson has been cited as writing, “No Free man shall ever be debarred the use of arms”
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(Straub). This quote suggests that Jefferson believed that owning guns was a right given to US

citizens and the government should not have the authority to take that right away. In each and

every one of these quotes, the founders are making it abundantly clear that the Second

Amendment ensures an individual's right to keep and bear arms to defend themselves from

enemies foreign and domestic and, if necessary, fight back against unjust laws and a tyrannical

government.

There have also been multiple Supreme Court cases about the Second Amendment

concluding that it is the right of the individual to keep and bear arms. Two of the most

compelling Supreme Court cases were McDonald v. City of Chicago and DC. v. Heller. In the

2010 McDonald v. City of Chicago, Otis McDonald, challenged a 1982 Chicago law that banned

new registration of handguns and made registration of firearms a prerequisite of owning new

firearms. The Supreme Court found that the second amendment guarantee of “the right of the

people to keep and bear arms,” applies to state

and local governments along with the federal

government making the law unconstitutional and

emphasizing that the right to bear arms is

protected at the federal, state, and local level

(Duignan). In DC. v. Heller, Dick Heller, in

2008, sued the District of Columbia for their

Firearm Control and Regulation Act which

banned the keeping of firearms in one's home. In a five to four decision the Court said that the

law was in fact unconstitutional and that, “The second amendment was not just about having a
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well regulated militia, and that the term militia was not just for those serving in the military, but

also about[an] individual having the right to have weapons and to defend themselves” (Duignan).

These two cases are some of the leading arguments that the second amendment is about the

individual having the right to keep and bear arms.

Guns are not just a constitutional right but practical, useful tools to defend oneself,

participate in target sports, and help feed one's family. The following information was provided

by GunFacts.info, whose mission is to provide unbiased facts on firearms from websites such as

those of the FBI’s and the federal government’s. The first chart provides evidence that there are

up to 3.6 million defensive gun uses in the United States per year that prevent crimes. Of these

3.6 million successful gun

defenses, 83.5%

(2,087,500) of the time the

attacker either threatened

or used force first, proving

that guns are very well

suited for self-defense

(“Guns”). These defensive

gun uses include times

when guns were just

mentioned scare away a

potential perpetrator to

times when guns were used

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and an assailant was shot (“Red Flags”). The second chart shows that out of those defensive gun

uses, only eight percent of them result in the offender being wounded or killed (“Red Flags”).

Guns can be an extremely versatile tool when it comes to self-defense, many times they can be

used to de-escalate a situation quickly without it coming to violence. They are also versatile

when it comes to other uses for them such as hunting or target shooting.

In a study by the Harvard

Injury Control Research

Center, it was found that

68% of stated gun

ownership was for either

hunting or other sports.

Hunting is a reason why

private citizens own guns.

Hunting helps provide

money for conservation

projects and many times it also helps people in the United States feed their families, because

store-bought meat that is not filled with hormones is very expensive. Thus, people often hunt for

their meat supply. Another reason private citizens own guns is for sporting uses such as plinking

(shooting a gun for the sake of shooting a gun at a target) or for competition shooting (“Most”).

Shooting sports are extremely popular and have been practiced for hundreds of years all over the

world. One of the biggest shooting sports events takes place in the summer Olympics, where top

competitors from many countries compete in different air based gun and powder based gun
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competitions (“Shooting”). There are many other legitimate reasons for people to want to own a

gun, other than for self-defense.

There are points in time when limiting gun ownership of a single person could be

acceptable. Examples of when someone can lose their right to keep arms have already been

established by federal and state law. A person can be prohibited in Colorado from possessing a

firearm based on the commission of these crimes:

C.R.S. 18-12-108(3) and (4)(c) - Has Been Adjudicated Delinquent for a crime, which if

committed as an adult, would be a felony;

C.R.S. 18-3-204-Third Degree Assault- victim was LEO [Law Enforcement Officer],

Emergency Responder, Mental Health Provider in the performance of their duties.

Pursuant to sentencing guidelines, an individual could receive a misdemeanor sentence of

24-48 months, thereby disqualifying a person per 18 U.S.C. §922 (g) (1); and C.R.S.

18-12-112 (9)(a) Private firearms transfers - background check required - A person who

violates a provision of this section commits a class 1 misdemeanor and shall also be

prohibited from possessing a firearm for two years per state law. (“State & Federal”)

And firearms are prohibited to own federally based on these crimes and acts:

18, U.S.C. §922 (g) (1) - Has been convicted in any court of a crime punishable by

imprisonment for a term exceeding one year (excludes state misdemeanors where the

person may have received a sentence for up to two years):

18, U.S.C. §922 (g) (2) - Is a fugitive from justice:

18, U.S.C. §922 (g) (3) - Is an unlawful user of or addicted to any controlled substance

(as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802);
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18, U.S.C. §922 (g) (4) - Has been adjudicated as a mental defective or committed to any

mental institution;

18, U.S.C. §922 (g) (5) - Is an alien who is illegally or unlawfully in the United States;

18, U.S.C. §922 (g) (6) - Has been discharged from the Armed Forces under dishonorable

conditions;

18, U.S.C. §922 (g) (7) - Having been a citizen of the United States, has renounced U.S.

citizenship;

18, U.S.C. §922 (g) (8) - Is subject to a court order that restrains the person from

harassing, stalking, or threatening an intimate partner or child of such intimate partner;

18, U.S.C. §922 (g) (9) - Has been convicted in any court of a misdemeanor crime of

domestic violence (MCDV); and

18, U.S.C. §922 (n) - Is under indictment for a crime punishable by imprisonment for a

term exceeding one year. (“State & Federal”)

Currently under federal law, a mentally ill person can only be prohibited from owning and

purchasing a firearm if they have already committed one of the crimes stated above. Because of

viable fears about mentally ill people having access to firearms, legislators and other government

officials come in with Extreme Risk Protection Order Laws or Red Flag Laws.

Red Flag Laws or Extreme Risk Protection Orders are a new type of law that have been

passed or introduced in 15 states thus far. These laws allow a family member or close relative to

petition to have an Extreme Risk Protection Order placed on a person stating that they are a

“danger to themselves or others.” If the petition is accepted, law enforcement can then go to the

person in question’s home with no prior warning through an ex parte order and seize any
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weapons they find (“Extreme Risk Protection Orders” Giffords). An Extreme Risk Protection

Order, granted as ex parte, allows the order to be carried out without first telling the person the

order is placed on. Among the 15 states that have Extreme Risk Protection Order laws (ERPO

laws), five allow people other than family members to petition for an order; these could be:

school personnel, employers, co-workers, and mental health professionals. Currently, only three

states allow law enforcement to petition for an order (“Extreme Risk Protection

Orders”Giffords).

Advocates for the Red Flag Laws say that they save lives; and for the most part, they do

save lives that could have been ended via firearms. A study done by the CDC in June of 2018 to

look at the nation’s suicide rate (“Transcript”), found that Connecticut’s firearm suicide rate

decreased by 14% since it instituted its Red Flag Law in 1999. The state’s general suicide rate,

however, has increased by 20% which may indicate that the lower suicide rates are not directly

related to the law (Edwards). And in Indiana, which has had a Red Flag Law in place since

2005, it was found that firearm suicides in the ten years following the enactment of the law have

reduced by 7.5%. Indiana; while successful in decreasing the number of firearm suicides, the law

has not been successful at reducing the number of general suicides (Edwards). While Red Flag

Laws have had some success, there are still problems.

Taking guns from people forcibly via Red Flag Laws can be a problem because these

laws can be used for malicious purposes. Because of that, the majority of people who own guns

legally could be preyed upon. People who are actually mentally ill and have guns cannot just

have their guns taken away and then be left alone, because they will find other ways to either

hurt themselves or others. The problem is that mentally ill people are not getting help and are
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often ignored or overshadowed by things they do, and not why they do them. An example is the

Parkland school shooter, who killed 17 people on Valentine's Day in 2018. A student who was a

survivor of the Parkland shooting said, “This kid gets bullied a lot, someone should do

something,” and “I regret definitely not saying anything”(Brown). Nikolas was apparently

ostracized and mocked for the way he acted, and few people did anything. When people did try

to do something, the reports were ignored or pushed under the rug, up until the point where he

went and shot up his school (Brown). This is a time when if these reports were not ignored and

more people paid attention, Nikolas could have gotten the mental help he so obviously needed

and not been pushed to shoot up his school.

In addition to the potential legal problems with Red Flag Laws, there are also issues with

false reporting. Since Red Flag Laws are acted upon so quickly, there is not really time to see if

the compelling evidence was given falsely or maliciously, until after the fact. One example of

when a Red Flag Law was used for intentional harm was when a 28-year old Afghanistan War

veteran living in New York had an Extreme Risk Protection Order placed on him, falsely stating

he was a danger to himself or others because he had PTSD, which he did not. Because of this a

SWAT (Special Weapons And Tactics) unit and local police surrounded his home. During the six

hour “standoff”, the law enforcement officers forced their way into his home, seized his legally

owned AR-15, and a 30-round magazine (which in the state of New York is illegal) and

threatened his wife with calling child protective services. He barricaded himself in his attic and

started to post to his Instagram account amassing a large amount of support. He was eventually

peacefully taken into custody (“War”). This shows just one of the examples of how a Red Flag

Law can be used to cause harm to another person, and how dangerous they can be.
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Furthermore, with the current way Red Flag Laws are written they circumvent the Fourth,

Fifth and Fourteenth Amendments due to how petitions can be drawn out and executed without

the person the order is placed on knowing. This circumvents the Fifth and Fourteenth

Amendment’s right to due process by assuming a person to be guilty until proven innocent, and it

circumvents the Fourth Amendment’s right to unreasonable search and seizure, seeing as there

could, in rare cases, be false accusations making the seizures unreasonable and unconstitutional.

The unconstitutionality of these laws can be seen in the actual wording of the Colorado Red Flag

Law:

Upon issuance of the ERPO, the respondent shall surrender all of his or her firearms and

his or her concealed carry permit if the respondent has one. The respondent may

surrender his or her firearms either to a law enforcement agency or a federally licensed

firearms dealer, or, if the firearm is an antique or relic or curio, the firearm may be

surrendered to a family member who is eligible to possess a firearm and who does not

reside with the respondent. If a person other than the respondent is determined to be the

lawful owner of any firearms surrendered to law enforcement, the firearm must be

returned to him or her. (“Extreme” Colorado)

Because of their beliefs in the unconstitutionality of these laws, in every state that has passed a

Red Flag Law, a majority of sheriffs have either started to consider a resolution or have passed a

resolution to call their County a Second Amendment (2A) sanctuary county and to not enforce

Red Flag Laws. One of the states with the most 2A sanctuary counties is Colorado. Out of the 64

counties within Colorado, 51 are either considering a 2A sanctuary resolution or have already
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passed a resolution with the Sheriffs stating

that Colorado’s Red Flag Law was

unconstitutional (“Colorado”).

The intentions of Red Flag Laws are

to take firearms away from mentally ill

people to keep them from harming

themselves or others, however they are

focusing on the means and not the why. The

problem is not firearms and peoples’ access

to them; the problem in the U.S. is the poor

quality of mental health care and treatment.

The Sandy Hook shooter, Adam Lanza, was

denied access to a firearm legally on the basis of mental instability. His mental health problems

were completely untreated prior to the Sandy Hook shooting. He was not treated for psychiatric

and physical problems, like anxiety and obsessive-compulsive disorder, and was also deprived of

recommended services and drugs. These things led to him stealing his mother’s firearm,

shooting and killing her and then proceeding to shoot up a school (Cowan). Adam was not able

to get help for his mental condition for a long while and because of this, he was pushed over the

edge which led to him shooting his mom and then going to his school and shooting it up. If he

had had the access to help, Sandy Hook may have never happened and his mother could still be

alive. In this case, the firearms he accessed were not his own (and therefore could not have been
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taken away from him even if there had been a Red Flag order) and the problem was not the gun

but his mental health.

Another time the system failed to help people who are mentally ill was in 2007 when

Chad Escobedo took his step-father’s bolt-action hunting rifle and proceeded to shoot at a

classroom in his school from a field near it. In this case, no one was killed, but many people

needed surgery from glass shrapnel. Chad Escobedo did not kill himself and therefore had the

ability to be interviewed. During this interview, he stated:

I did seek counselling prior to my crime, but the counsellor never took heed of what I was

talking about, my problems, issues at home, everyday teenage obstacles really...I think

they’re ignored, not listened to.There are many cases besides mine where mass shootings

happened and they found the perpetrator was taking antidepressants or certain drugs. I

wasn’t on any drugs. But I wasn’t trying to kill anybody; I was trying to instill fear into

the public. (Hannaford)

Again a person's mental health problems were ignored and they were pushed over the edge and

shot up their school; and once again Red Flag Laws would not have helped because it was not his

gun.

There is yet another problem, a copycat problem. This specifically involves mentally

unstable people who see a mass shooting happen and then want infamy. An example of this was

the Las Vegas shooter. The FBI, after a year of investigation into his motives, found that his only

motive was to gain infamy. Here is another case where a man was clearly having mental

problems and Red Flag Laws would not have helped because he would have most likely gotten

his arsenal another way (“FBI”).

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Another problem in the U.S. is suicide, and curretly 51% of sucides are commited using

firearms. Red Flag Laws do not help the mentally ill, they only take away a method for somone

who is mentally ill to do something devastating, such as suicide. Homicide is the same thing;

there are mentally ill people who have gotten no help with their problems and even if they get

their guns confiscated they can still kill themselves with other means:

Wolfgang (1958) stated that individuals who are intent on killing themselves or another

would find a way to do so. If a firearm was available then the individual would use a

firearm. However, if a firearm was not available the individual would substitute the

firearm for another weapon, such as a knife. Therefore, the firearm prevalence in an area

should have no effect on violent crime because individuals will find a substitute weapon

to use to harm someone. (Matthew and Bergner)

However terrible suicide and homicide are, if a person wants to harm themselves or others, they

will find a way to do that whether it is with a firearm, a knife, a rope, a smashed bottle, a

hammer, a baseball bat, a motor vehicle, or a bomb. All of these things have been used to cause

human suffering; the focus should be on what would lead a person to do such things and why

they did them, not what they did them with.

Banning weapons and making laws that make firearms harder to access by people who

want to purchase them legally only stops law abiding citizens. Seizing firearms from citizens

based on magazine capacity or a specific type of firearm is not the way to go about stopping

desperate people from doing desperate things. Many laws, on paper, are good and would work,

but as soon as human error is mixed in, things can go wrong, mistakes are made, and innocent

people can get harmed. Red Flag Laws are well intentioned by trying to fight mass shootings and
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gun crime, but just because something is well intentioned does not mean it is justifiable. Red

Flag Laws are an infringement on a citizen’s rights, their right to keep and bear arms, their right

against unreasonable search and seizure, and their right to due process. Taking away law abiding

citizens guns will not solve the gun violence problem in the US. Helping those who are mentally

ill or suicidal, by paying attention to the signs of their distress and not ignoring those will make a

difference in addressing Gun violence.

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Works Cited

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Ostracized.” Miami Herald, 17 Feb. 2018,

https://www.miamiherald.com/news/local/community/broward/article200754

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26 Mar. 2019,

http://gunrightswatch.com/news/2019/03/26/colorado/colorado-becomes-the

-next-front-with-2a-sanctuary-counties/. Accessed 13 Dec. 2019.

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Nov. 2019.
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Edwards, Cam. “Suicides Are Going Up, Not Down, In States With “Red Flag” Laws.”

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