Red Flag Laws vs. 2nd Amendment

Red Flag Laws v. 2nd Amendment
Red Flag Laws v. 2nd Amendment

It’s no secret that the United States is in the midst of a war for its ideological future. In a historical context, certain battles become known as turning points like Gettysburg in the Civil War or Normandy in World War II. It’s not hard to imagine a future historian looking back and seeing this conflict as one of the major ones.

What Are Red Flag Laws?

In the wake of incidents like the 2017 shooting spree, where Stephen Paddock killed 58 people and was responsible for more than 800 injuries on the Las Vegas strip, and other infamous mass shootings, states began passing laws allowing judges to issue orders to confiscate a person’s guns. In the inevitable review of these events, there have been instances where something in the killer’s past “should have raised a red flag” that they were capable of such an atrocity, hence the moniker.

The professed reason for enacting them is, of course, public safety, where a limited number of people could petition a court to have someone’s weapons impounded. Each state’s rules are different, but usually, the list of those so authorized is kept to medical professionals, police and immediate household members. These individuals can bring concerns for personal (as in a domestic violence scenario) or public safety before a judge to have them issue an Extreme Risk Protection Order (ERPO).


There are several reasons people object to red flag laws. First and foremost is the question of the US Constitution. At least on the surface, these rules would seem to run up against the 2nd (the right to bear arms), 4th (unreasonable search and seizure) and 6th (due process) Amendments. The counterargument that service in a militia is a prerequisite to own guns was rendered moot by the Supreme Court (SCOTUS) in the 2008 case of District of Columbia v. Heller.

The contention that there exists a potential for violations of the rights of due process and against illegal search and seizure is often dismissed by proponents as a “slippery-slope” argument. Yet, there has already been one such example out of Tisbury, Massachusetts and the case of Stephen Nichols, an 84-year old Koren War veteran working as a school crossing guard.

A waitress overheard a snippet of a conversation Nichols was having with a friend, and taking it completely out of context, reported it to the police chief. He, in turn, immediately drove to where Nichols was working and fired him on the spot. The chief then drove him home in his patrol car, entered the house and took all his guns and Nichols’ license to own them. Nichols was quickly vindicated and returned to his job with an apology. However, his guns were not returned and are to be sold, pending Nichols’ lawsuit to prevent that. Consider these facts:

  • There were no sworn witnesses, just a verbal conversation.
  • There was an immediate penalty with his loss of employment.
  • Nichols was taken into custody, i.e. his freedom of movement was denied to him by the police.
  • His home was entered by the police, sans warrant.
  • His property was seized, again without a court order.
  • Though exonerated, his guns were not returned.
  • A judge is being asked to return his property after the fact, rather than pre-authorizing the actions.

At some future date, SCOTUS will eventually have to decide where the balance point is between two exceedingly important issues: the safety of people in public venues and the Constitutional rights of the citizenry. Will that hypothetical scholar studying America with the benefit of hindsight praise the solution or condemn it?

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