Not hard, really.
In the first place, Devin Kelley had been convicted of domestic violence in a military court. Had his conviction been in a civil court, he would have been prohibited pursuant to the Lautenberg Amendment. However, Kelley was mustered out of the service with a Bad Conduct discharge, instead of a Dishonorable discharge, which would also have made him ineligible to legally purchase a firearm.
It was only after the shooting at the First Baptist Church in Sutherland Springs, Texas, that the military became aware of the problem and corrected it so that domestic violence convictions are properly reported. The Department of Defense made the necessary changes and thousands of veterans became ineligible to purchase or possess firearms.
In the second place, the objections to red flag laws are not based on a love of guns or the Second Amendment. They are based on the Fifth Amendment which prohibits the taking of a person’s life, liberty, or property without due process of law.
Since 1938, federal law has prohibited the possession of firearms by persons who have been adjudicated as being unable to handle their own affairs or to present a danger to themselves or others. In other words, it requires a finding by a court or board of competent authority empowered to make such determinations. In the case of a court determination, it requires that the person be allowed to present a defense and to be represented by an attorney. The court is required to balance the claims of the accuser and the defense of the accused before making a determination.
Red flag laws, as they are presented today, seek to circumvent the constitutional rights of the person and thus become ripe for abuse.
And abuses and errors have already happened, resulting in at least one death. A vindictive relative made a false claim to Maryland authorities and an emergency protective order was issued. Police came to the man’s house at 5:30 in the morning. The man, who had no idea who was at his door, answered the door with a gun in his hand and the police shot and killed him.
In a Massachusetts town, an honorably retired police officer who worked as a school crossing guard was stripped of his permits, had his guns seized, and los this job because a waitress in a diner overheard a snippet of a conversation the former officer was having with a friend and misunderstood what was being discussed. When the truth eventually came out, his permits and guns were restored and he was given his old job back, but the whole thing could have been avoided had the man received the due process that is his right.
On the other side, Ian Long, a military veteran with PTSD, passed California’s rigorous vetting process to buy a pistol. In April of 2018, deputies from the Ventura County Sheriff’s Office were dispatched to Long’s residence, where he had been shooting into the walls. California had an active red flag law, but the mental health evaluators determined the Long was not sufficiently disturbed to warrant taking him into custody.
Seven months later, he killed 11 people and was responsible for the death of a Ventura County Sheriff’s sergeant at the Borderline Bar and Grill.
Once red flag laws are in place, there seems to be a tendency to expand the number of people allowed to request them.
So the real argument isn’t over whether or not there is justification for seizing a person’s firearms and temporarily prohibiting them from purchasing or possessing other guns, it’s about doing it by violating their civil rights.
And I can justify that argument all day long.