Washington D.C. – -(AmmoLand.com)- When discussing “red flag” gun laws (the technical term is usually an Extreme Risk Protection Order, or ERPO), one of the questions is why the NRA opposes many of the measures that are currently being passed. Well, it’s one of the classic cases of anti-Second Amendment extremists taking advantage of the good intentions of many people, including Second Amendment supporters.
Here’s the deal: When mass shootings happen, the anti-Second Amendment extremists pounce. There is a huge emotional groundswell that leads to many attacks against the NRA and other groups that support the Second Amendment. Politicians like Chris Murphy and Kamala Harris seize on the chance to attack our rights and demonize us as child killers and domestic terrorists for opposing the sweeping collective punishments that they would impose if they had the power to do so. That dehumanization campaign is working to an extent.
In the wake of the Parkland shooting, David French outlined a way to implement ERPOs in National Review. Now, before we hear a cry of “Negotiating Rights Away,” actually read the whole article first, as well as his response to a critique.
The key here is that French proposed very strong due process protections:
- Only allowing a limited number of close people to be able to file a report.
- Those filing the report would have to include clear and convincing evidence.
- The person reported would have to have a chance to respond to the allegation.
- The order would lapse after a set period of time.
The NRA’s position on ERPOs, as outlined by this fact sheet, is very similar to French’s outline of balancing the need to cut off a dangerously mentally ill individual who could carry out a mass shooting, and our Second Amendment and due process rights. That should clear up the misrepresentations, which have not only come from the expected direction of anti-Second Amendment extremists, but also from some Second Amendment supporters.
On the other hand, Rubio’s bill has a lot of problems. Here are some of them:
- It does not require a referral for mental health treatment as a result of an ERPO. Let’s face it, if there is clear and convincing evidence someone is having a mental health crisis that makes him (or her) dangerous, then an ERPO is just slapping a band-aid on malignant melanoma.
- The bill also has an overly broad definition of family member, to include roommates within the past year or a former dating partner. That leaves open the possibility of the ERPO being used as a means to get revenge for a bad end to such a relationship.
- A new federal offense is created for having guns after an ERPO is issued, without any protections for due process. No evidence is required to make an individual a prohibited person, and they don’t even have a chance to respond to the allegations. A mere telephone conversation could result in a court order for the immediate surrender of firearms.
- There is no deadline for the return of surrendered firearms, nor are there any requirements to ensure that surrendered firearms are kept safely. In other words, those firearms could be damaged or ruined, and there would be no recourse for a person who is found to not be a danger after a court hearing.
Look, it goes without saying that ERPOs are not exactly a good thing for Second Amendment supporters to discuss. Like NICS, it is the best of a bad lot when it comes to addressing a real problem. Ideally, we’d have no need for ERPOs because there would be no stigma for seeking mental health treatment, or because potential locations for mass shootings would be harder targets, or because the shooters will not gain notoriety for those actions. But we’re not in an ideal world.
Just as Second Amendment supporters need to suck it up and fix NICS, Second Amendment supporters must also buckle down, and come up with ways to implement EPROs that respect due process and which don’t serve as a tool for permanent gun confiscation. If we don’t engage and come up with a good process, unreasonable anti-Second Amendment extremists will come up with versions that will be truly awful. It sucks to have to make that tradeoff, but the alternative could see anti-Second Amendment extremists get the power to take everything we have gained, including the Heller and McDonald decisions, away. Fight on.
About Harold Hutchison
Writer Harold Hutchison has more than a dozen years of experience covering military affairs, international events, U.S. politics and Second Amendment issues. Harold was consulting senior editor at Soldier of Fortune magazine and is the author of the novel Strike Group Reagan. He has also written for the Daily Caller, National Review, Patriot Post, Strategypage.com, and other national websites.