Q&A of the Day – Is Florida’s “Red Flag” law unconstitutional?
Each day I’ll feature a listener question that’s been submitted by one of these methods.
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Today’s entry: After all we know about the tyrannical Federal Government,I am 100% against red flag laws. The Constitution does not allow it. If I am against a tyrannical government, and want to overthrow it, can't they red flag me? Isn't that the opposite of Founders thought?
Bottom Line: This note is one of several I received after providing the update to Florida’s use of “red flag”, or risk protection orders, two years after the passage of the law. In case you missed that story, more than 3,500 orders, or about five per day have been issued. Now, I’ve noted that they seem to have been generally handled reasonably without obvious abuse taking place. I also observed that the top three counties for orders have occurred in Republican counties carried out by Republican sheriffs. This defies the initial concerns that liberal counties might attempt to abuse the new law to press gun control. Still, the question remains – is the premise of a “red flag” law false. Does it fly in the face of the 2nd amendment?
I understand the argument, though I was and am a supporter of the Marjory Stoneman Douglas Safety Act. I’m sensitive to the concerns because to your point, the premise of the 2nd amendment, and the context of the amendment speak directly to the concerns you’re raising. It’s the uncomfortable but necessary conversation to have when discussing any gun control measures. What’s the premise of the 2nd amendment? There is but one. The ability to defend your liberties promised under the Bill of Rights and incorporated into our Constitutional rights. That includes against a tyrannical government should it be necessary. That’s specifically what a “well armed militia” speaks to in the 2nd amendment. Anyone who’s ever argued otherwise has been empirically wrong. You need look no further than the people who were responsible for it. Our founders and some of the earliest members of Congress who’d literally fought a tyrannical government, England, for their and our freedom. Still, the question remains, do red flag, or risk protection orders fly in the face of it?
The only way we’ll have this settled is if/when it’s challenged before the Supreme Court. Because these laws, including ours, are new and abuses aren’t evident – we've not had a legal challenge reach the high court for their input. As a constitutionalist, and a supporter of the 2nd amendment, I think the two can coincide – just as the politicians who passed it in Florida surmised. The conditions for orders to be carried out aren’t easy to attain. There are literally 12 pages of conditions (in 10 font) that must be achieved for the order to be executed. But the bottom line is this. Is someone provably threatening harm to themselves or others? If so, the legal process can proceed. Now, I don’t mean to speak flippantly about freedom or our constitutional rights, but if you’re a licensed gun owner openly organizing a revolution from your house...let’s just say I’d be as concerned as anyone. Hence the law. The final answer to your question has yet to be determined. The practical application is hopefully something my explanation helped illustrate.