Raising the Red Flag: Gun Owners Are Increasingly Being Asked to Prove That They Should Retain Their Gun Rights

So much for innocent until proven guilty. The proliferation of “red flag” laws across the country means that the burden of proof increasingly falls on gun owners to prove to a court that they’re worthy of retaining their gun rights. What could possibly go wrong?

Even taking the results of (Duke University medical sociologist Jeffrey) Swanson’s studies (on red flag laws’ effects on suicide rates) at face value, the implication is that the vast majority of people whose guns were seized—90 to 95 percent—would not have committed suicide had they retained their firearms. Meanwhile, none of these studies reported any effect on homicides.

David Kopel, a gun policy expert at the Independence Institute in Denver, says red flag laws may have an impact, even if it is too small to be detected by looking at suicide and homicide rates. “I think it would disarm some people who are suicidal,” he says. “And I think you have some people who are acting dangerously enough that a person with common sense would say, ‘Wow, that guy should not have a gun.’ It would address folks like that.”

But Kopel emphasizes the importance of procedural safeguards to protect the constitutional rights of gun owners, such as requiring that petitions be submitted only by law enforcement agencies after an independent investigation, allowing ex parte orders only for good cause, limiting them to one week, limiting subsequent orders to six months, requiring clear and convincing evidence, providing counsel to respondents, giving them a right to cross-examine witnesses, and letting them sue people who file false and malicious petitions. He also recommends giving gun owners advance notice of confiscation orders unless there are special reasons not to do so, a policy that might have made a crucial difference in Gary Willis’ case.

Northeastern University criminologist James Alan Fox, an expert on mass shootings, shares Kopel’s concern that suddenly seizing guns can make violence more likely. “If you have an individual who’s angry, bitter, threatening other people, [and] owns a gun,” Fox told Reason’s Nick Gillespie in August, “the attempt to take that gun away can actually precipitate the very violent act that you’re trying to prevent.”

No existing law meets all of Kopel’s criteria. Washington state allows an even longer list of people to file petitions than Maryland does, including former spouses, former girlfriends and boyfriends, and former roommates. California’s list is almost as long, and a pending bill would expand it further, adding employers, co-workers, and school personnel. Colorado is the only state that guarantees a lawyer for respondents, and no state provides a civil remedy when petitioners lie. …

“It’s a great idea on paper,” says Dave Workman, senior editor at the Second Amendment Foundation in Bellevue, Washington. “The problem is the execution.” In practice, he says, red flag laws mean “you’re guilty until you prove yourself innocent.”

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