Bill Lee’s Red Flag Proposal Is An Unconstitutional Travesty

Tennessee Gov. Bill Lee is asking lawmakers to support “new legislation that would temporarily block someone who is deemed a threat to themselves or to others from having guns,” writes Axios.

That’s one way of putting it.

Another, more precise, way would be to say Lee supports a law that forces people accused of a precrime to sit down with state-appointed psychiatrists and lawyers and prove their innocence before the government decides if they can keep their guns. If that person says the wrong things, cops can show up at his home, search it, demand the accused hand over his property — not just any property, but property explicitly protected by the Constitution — without offering any evidence that he’s committed, or ever planned to commit, a crime.

In selling his bill, Lee claims that guns can be taken from those accused of having a “psychiatric disorder, alcohol dependence, or drug dependence.” But federal law already prohibits the sale of a gun to anyone who “has been adjudicated as a mental defective.” And most people who drink or take drugs don’t have a propensity towards violence. Excessive drinking might be bad for you, but it’s legal. As is grumbling about chemtrails, pondering how to overthrow the government, and hating your neighbors.

Incidentally, if an alcoholic is found guilty of a precrime, Lee’s bill only affords him a single hearing to rectify the situation for each act of suspension, which can be in effect for up to 180 days — even if he pulls his life together, repents, and becomes a devout Seventh-Day Adventist. The state can keep asking for extensions in perpetuity.

Of course, even those with persistent depression, an emotional disorder, aren’t often would-be killers. One in eight Americans takes antidepressants. Yet, one suspects laws like this will only stigmatize depression and make gun owners less inclined to seek help.

More importantly, though, Lee fails to mention in his factsheets that the bill allows the state to take firearms on the basis of a “serious behavioral condition,” which includes “functional impairment that substantially interferes with or limits the person’s role or functioning in family, school, occupational, or community activities.” The incredulous italics are mine, because Lee’s standard, despite his contention that there is a high burden of proof, could include basically anyone who’s met the psychiatric diagnostic criteria for depression and stopped going to a weekly softball game.   

Sure, the law includes penalties for false and bad-faith statements by cops and third parties, but those would be all but impossible to prove or prosecute because the basis for the state issuing a “temporary mental health order of protection” is extraordinarily broad.

If someone is threatening others with violence, Tennessee already has numerous laws on the books that allow for arrest. It already has a law that allows for the immediate detention of people deemed dangerous to themselves or others. Every state does. And yet, in numerous recent mass shootings, the perpetrator has been known to the police, and they did nothing.

The Covenant School shooting, Lee maintains, makes it impossible not to act. But it’s important to remember that, as far as we know, nothing in Lee’s proposal would have stopped that shooter. The mother, who never appears to have reported her daughter for mental illness, probably wasn’t even aware that her adult child still owned guns. As far as we know, the killer never threatened anyone publicly before the shooting, nor did she pose a danger to herself. For all we know, the shooting was an act of terrorism or conducted over some personal grudge. We won’t know until, or if, the sheriff in Nashville releases her manifesto.

One suspects that gun controllers will soon cook up studies to tell us red flag laws are amazing, but to this point no major study — including a meta-analysis conducted by RAND Corporation — has conclusively found them to be effective. Many of these state laws are even worse than Lee’s proposal as they are permitted ex parte orders. But even if these laws were useful on the margins, they are a serious attack on the Second, Fourth, Fifth, and Sixth Amendments.  Red flag laws just give authorities power to work around normal evidentiary standards. Perhaps we should try upholding the tens of thousands of laws that already govern gun ownership before passing new ones.

In his platitude-laden Twitter video, Lee frames himself as a courageous nonpartisan, accusing anyone who opposes his proposal of being blinded by politics. The truth is, the governor’s do-somethingism is about the laziest, most politically motivated breed of leadership imaginable.