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Can Red Flag laws save the day?Actual conservatives are concerned.  In the wake of the El Paso and Dayton attacks, will congressional Republicans go squishy and sell out individual liberty?  To find my articles on those attacks, enter “El Paso and Dayton” in the SMM homepage search bar.  The possibility of Republican squishiness is ever present, but for the moment, President Trump is holding the line, suggesting flexibility only on a so-called “red flag” law.

Red flag laws–some 20 states currently have them–dance precariously on the thin line between constitutionality and tyranny.  Even a law that barely passes constitutional muster in its text can easily become unconstitutional in application.

Generally, such laws allow pretty much anyone to complain to the courts that pretty much anyone is mentally impaired and/or imminently dangerous.  If a court finds this likely by various standards of proof, they may order their guns seized, and issue a ban on firearm purchases.  Every state has an involuntary commitment law, so red flag laws are more or less in addition to those, but both can be easily misused to the detriment of everyone’s civil rights.

To determine whether a federal red flag law, or any additional state laws, are necessary, or can do what their backers claim, we must first consider where, circa 2019, our mental health laws stand.  It has taken about a half century, and a road littered with the tragic consequences of good intentions, to bring us to where we are today in the identification and treatment of the mentally ill.

Many of the problems we now experience can be traced back to the early sixties when Leftist attitudes, ideas and policies began to take root like never before.  The general state of mental health treatment in America at the time, particularly in state-run hospitals, was a story of some abuse and neglect, but “reform” did not lead to improvement.

The sixties were the heyday of the counterculture, where the self-appointed intellectual elite enjoyed growing power.  Led by such luminaries as Harvard’s Timothy Leary whose primary claim to academic fame was marinating his brain in LSD, slogans such as “tune in, turn on, drop out,” “don’t trust anyone over 30,” and “off the pigs,” became indicators of the paths to power, power which directly led to our current dilemma.

In her illuminating book, Do Gooders: How Liberals Hurt Those They Claim to Help (And The Rest of Us, Mona Charen explained that Thomas Scacz, author of The Myth of Mental Illness,

popularized the idea that mental illness did not exist but was merely a label that a rigid and intolerant society placed on nonconformists… ‘Mental illness was a social construct, a prejudice, not a diagnosis.

Charen notes that Erving Goffman wrote an influential book called Asylums, in which he argued that all mental treatment institutions were essentially alike, and not for the better.  Goffman

insisted that that most of the symptoms of mental illness displayed by residents of mental hospitals–raving, hearing voices, paranoia–were responses to being locked up, not evidence of illness…

Also enormously influential was British Psychoanalyst R. D. Laing.  Charen writes:

Laing argued that modern society itself was twisted and unnatural…Laing taught that society’s coercion alienated human beings from their instinctive, natural, and intuitive selves. The people society called mentally ill were merely attempting to recapture the ecstatic and intuitive parts of their souls. Who were we, he asked, to label them insane when society itself was so sick?

Sound familiar, gentle readers?  Giving them a possibly undeserved benefit of the doubt for good intentions, they argued the mentally ill aren’t really sick at all, but have a supernatural sense of perception, even a more evolved consciousness than the rest of the everyday dullards, such as those clinging to God, guns, and an antiquated Constitution that gets in the way of inevitable socialist “progress.”

States were only too happy to close their hospitals–they were very costly–promising to replace them with much smaller local facilities, but that promise was never realized, particularly where inpatient facilities are concerned. Most focused as much, if not more, on social issues rather than the less glamorous treatment of the chronically mentally ill.  There’s very little virtue to signal there.  One result is the fact that a great many of the “homeless” (who tend to reappear only when a Republican holds the White House) owe that condition primarily to their mental illness rather than the cruelty of uncaring Conservative society.  They refuse treatment, even when rare inpatient treatment is available.

Totalitarian societies routinely imprison the sane in barbarous “mental health” facilities because anyone opposing the benevolent dictatorship must, by definition, be crazy.  Our Constitution makes that kind of torture–thankfully–difficult.  The issue of involuntary commitment (hereinafter referred to as “IC”) requires balancing the need of society to protect the innocent, against the right of the individual to avoid unnecessary, unconstitutional confinement.  Most IC laws contain these two elements: the law allows the immediate IC of those who, due to mental illness (1) pose a substantial (not necessarily imminent) danger to themselves or others, or who (2) cannot, due to their condition, care for their own essential needs. Various states may include other elements, but these are the primary considerations.

The police ultimately enforce these laws.  Usually, they, or doctors, may make the necessary determination on the elements, but it is most common for the police to do it, and to take the involved person into custody.  Police officers don’t like to do this.  Most are very wary of violating anyone’s rights, and mental health law presents many gray areas. Their wariness is a good thing.

The lesson to be learned is the right legislation, no matter how brilliantly written or well intentioned, always has unintended consequences.  The constitutional balancing act involved is always difficult.  That said, IC laws are absolutely necessary.

Red Flag laws build on this foundation, but invariably allow just about anyone to petition the courts to temporarily–even permanently–take away one’s right to keep and bear arms, their right to self defense, arguably, their due process rights, and a variety of others.  It’s not hard to imagine how such laws can be abused.  An angry spouse embroiled in a divorce could easily lodge false charges against their quite sane spouse.  Greedy relatives could go after wealthy Grandpa.  Spiteful neighbors, political activists, you name it, could cause great harm.

But wouldn’t the courts filter out such false claims?  Perhaps, but many judges these days are stridently leftist.  Many think anyone owning guns inherently crazy and dangerous.  Some gladly impose their own social preferences over the law.  Would they worry about the rights of the accused in such a case, or would their belief in the greater societal good of abolishing guns override their judicial oaths?

To believe the media, mass attacks are an overwhelming public safety issue unique to gun crazy America.  Is this true?  PowerLine explains:

That the U.S. leads the world in mass shooting events, and that the cause is our liberal gun laws, are articles of faith on the Left. Barack Obama, for example, said:

The one thing we do know is that we have a pattern now of mass shootings in this country that has no parallel anywhere else in the world.

This belief, while pervasive in our culture, is untrue. John Lott and Michael Weisser explode the myth…:

We know of no way to discover most of the cases where four people have been shot to death in an incident in Africa or many other parts of the world during the 1960s, 1970s, 1980s or even 1990s, and that is the reason the new study just looked at the last 15 years from 1998 to 2012 of the 47 years he [Adam Lankford] examined.

Lankford’s data grossly undercount foreign attacks. We found 1,423 attacks outside the United States. Looking at just a third of the time Lankford studied, we still found 15 times as many shooters.

Even when we use coding choices that are most charitable to Lankford, such as excluding any cases of insurgencies or battles over territory, his estimate of the US share of shooters falls from 31 percent to 1.43 percent. It also accounts for 2.1 percent of murders, and 2.88 percent of their attacks. All these are much less than the United States’ 4.6 percent share of the population.

Of the 86 countries where we have identified mass public shootings, the US ranks 56th per capita in its rate of attacks and 61st in mass public shooting murder rate. Norway, Finland, Switzerland and Russia all have at least 45 percent higher rates of murder from mass public shootings than the United States.

Media coverage surely does not well comport with fact.  How many mass killers are actually mentally ill?  PowerLine again provides valuable insight:  

Fuller Torrey, writing in the Wall Street Journal, points to two studies, totally ignored by the Post, that demonstrate the importance of mental disturbance as a contributing factor in mass shootings. Dr. Torrey is the founder of the Treatment Advocacy Center and author ofAmerican Psychosis. He says:

In 2018 the Federal Bureau of Investigation released a report titled ‘A Study of the Pre-Attack Behavior of Active Shooters in the United States Between 2008 and 2013.’ It reported that 40% of the shooters had received a psychiatric diagnosis, and 70% had ‘mental health stressors’ or ‘mental health concerning behaviors’ before the attack.


In July 2019, the U.S. Secret Service released its report ‘Mass Attacks in Public Spaces—2018.’ The report covered 27 attacks that resulted in 91 deaths and 107 injuries. The investigators found that 67% of the suspects displayed symptoms of mental illness or emotional disturbance. In 93% of the incidents, the authorities found that the suspects had a history of threats or other troubling communications. 

The demolition of Sandy Hook Elementary School

So we can reasonably conclude about 70% of mass killers had some previous “diagnosis” of some kind of mental illness, or in retrospect, displayed such signs.  This is less helpful than it might suggest.  Go here for a link to my article on the mental health commission appointed to study the Sandy Hook killer.  The commission’s conclusion: despite many years of mental health treatment, no one predicted, or could have predicted, the killer’s intentions and acts. And most significantly, the mental health profession cannot be held responsible for that failure.  They also advocated the usual gun control measures. For my series on the Newtown attack, enter “Newtown” in the SMM homepage search bar.

If we fully credit these studies, some 30% of mass killers appear to be exclusively evil, not mentally ill.  Red flag laws can never identify or intercept them.  But what about the genuinely mentally ill?  Can red flag laws make a difference?

The laws allow only the temporary involuntary commitment, and temporary seizure and/or restriction on gun purchases and gun ownership.  This may eventually lead to a permanent infringement on rights, and this may deter some, perhaps even entirely prevent a planned attack, but it will not guarantee eternal lack of access to guns.  Even a permanent individual ban will not provide such a guarantee.

People planning mass murder are hardly going to be deterred by court orders.  They surely don’t need to buy new guns in a gun store to obtain guns, nor do they need guns to do massive damage.  The Counter Extremism Project notes:  

CEP has documented at least 40 vehicular terrorist attacks since 2006, collectively resulting in the deaths of at least 197 people and the injury of at least 1,066 others.

The most deadly mass attacks–school and otherwise–in American history were done with explosives:

1927: Bath, Michigan; 44 dead, 58 injured.  Method: Dynamite and gasoline. 

1995: Oklahoma City, OK; 168 dead, some 200 injured.  Method: bomb made with fertilizer.  

2001: 9-11, New York City; 2996 dead, many thousands continue to suffer injuries in the aftermath, including first responders and others who worked at the site. Method: Aircraft used as guided missiles.   

Final Thoughts:  Red flag laws must be enacted with the greatest care, and carefully watched in application.  The potential for preventing attacks may be outweighed by the probability of abuse.  There is surely great temptation for Republicans to give in to the need to be seen “doing something!” by enacting such laws, but clearly, their potential positive effects are nowhere near those being claimed by their advocates, and negative consequences are easily foreseeable.

Why would they propose such laws then?  The Left always works to enact any ban, any law that would in any way harm the Second Amendment and the right to self-defense.  That red flag laws will be used to deny the innocent their rights is a feature, not a bug.  They always seek to increase the power of the state and decrease individual liberty.  If they are right, and President Trump is a white supremacist, a greater threat than Adolf Hitler, if he is actually “shredding the Constitution,” why would they want to give him more power, extra-constitutional power?

Simple.  They intend to take the Presidency and the Congress by any means necessary, and when they do, they’ll ensure they never again lose power.  To do that, the state must be all-powerful, and anyone disagreeing with their aims must be disarmed.

Taking away someone’s guns doesn’t mean they can’t obtain others, regardless of how many laws they violate in the process.  Even if they can’t obtain guns, there are innumerable ways to cause mass casualties. It would also be useful to go to this classic Bill Whittle video  where we learn America is far from the violent nation some claim.

The most effective means of dealing with mass killers are the least expensive and the easiest to implement: end all “gun free” zones, and enact national constitutional carry.  Anyone not prohibited by law (convicted felons, the adjudicated mentally incompetent, illegal aliens, etc.) may carry concealed weapons without any permit. This would include national concealed carry reciprocity.  When every well-intentioned law, gesture, and virtue signal fails, as they always must to one degree or another, only the armed law-abiding, then and there, can stop an attack and save lives.  The certainty there will be many armed, prepared people everywhere is the only sure way to deter attacks.  The presence of such people is the only sure way to save the maximum number of lives when laws fail.