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Red flag laws have to be narrowly crafted to be constitutional, expert says

A Constitutional expert with a free market think tank sees many challenges to passing a ‘red flag’ law that is Constitutional.

“It’s difficult to do, and I’m not even sure it’s worth it,” said Rob Natelson, Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver. “We’ve got some evidence now as to the effect on violent crime. At least the early returns seem to be that it doesn’t have much effect.”

The key is that firearms, like any tool, are property and citizens are not supposed to be deprived of their life, liberty or property without due process of law, according to the Constitution’s 5th and 14th amendments, notwithstanding how one does or does not interpret the 2nd Amendment.

“The person seeking to remove guns from the house of the owner would have to demonstrate an imminent threat of irreparable harm by clear and convincing evidence,” said Natelson. “That particular formula of an imminent threat of irreparable harm by clear and convincing evidence has been the traditional formula that courts adopt in the very rare cases where they take away or freeze assets without notice.”

Natelson would like to see legislation have a non-property focus.

“We would do better, probably, to focus on laws which deal with the person rather than with the instrumentality,” said Natelson. “If you can demonstrate that somebody is incompetent or is a real risk to himself and others, then that person maybe should be taken into custody and given some kind of a mental health exam. For the most part, red flag laws don’t call for that.”

Kansas Speaker of the House Ron Ryckman looked to policy changes in access to mental health care as one way to address the mass shootings in Ohio and Texas earlier this month.


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