Here is my full column that ran in the Washington County Daily News yesterday.
Gov. Tony Evers is still pushing for the Wisconsin Legislature to pass new gun-control legislation and threatening to call a special session to do so. He went so far as to call people’s concerns over his gun-control measures as “BS,” as if adult deliberation and constitutional considerations are now unwelcome in Madison. At the risk of our governor stamping his feet and pouting, let us explore the legitimate concerns with his proposals.
Evers is advocating two new gun-control laws. The first law he wants is universal background checks. The concerns over universal background checks are not so much constitutional as practical. Under current law, any person who purchases a firearm from a gun store or licensed firearm dealer is required to pass a background check. This includes sale of guns at gun shows.
Current law does not, however, require background checks for a private sale or transfer of a firearm. Universal background checks would require that someone undergo a background check in virtually all circumstances. In some versions, this includes when a firearm is passed through inheritance, given as a gift, or even loaned. While probably not constitutionally prohibitive, such checks are monstrously unwieldy. It puts the burden of conducting a background check onto private individuals and criminalizes them if they fail to comply. In their worst derivations, universal-background-check laws require a firearm registry to track the movement and ownership of firearms. The cost and hassle of enforcement and compliance far exceed the usefulness of the law.
A red flag law is far more problematic. The premise of a red flag law is that people who are about to commit mass murder often exhibit troubling behaviors that could be reported so that government officials could confiscate their firearms before they do something bad. The problem with a red flag law is not even its flagrant assault on our Second Amendment rights. The problem it the fact that it tramples on our First, Fourth, and Fifth Amendment rights to get to our Second Amendment Rights.
Under a red flag law, a person’s First Amendment right to speak freely would be infringed. If a person makes some uneasy, outlandish, or even violent statements, the government could seize their firearms. For every mass killer who said something stupid and violent, there are a million other Americans who have said something stupid and violent and never acted on it. A red flag law would have the government cracking down on people for the simple act of saying the wrong thing at the wrong time in front of the wrong people.
Our right to be secure in our “persons, houses, papers, and effects against unreasonable searches and seizures” is protected by our Constitution’s Fourth Amendment. Under a red flag law, the government would be given the power to arbitrarily seize a person’s firearms because another person thinks they might be dangerous. Surely, such a low standard cannot be construed to be reasonable, or the notion of being secure in one’s person is rendered meaningless.
Our Constitution’s Fifth Amendment protects the people from being “deprived of life, liberty, or property without due process of law.” Under a red flag law, the entire point of it is that the government seizes the firearms without needing to actually convict someone of a crime. The person whose firearms are seized is utterly deprived of due process except for the process to get his or her firearms returned. Even then, the burden rests on the accused to prove that he or she does not intend to commit a crime in order to have the firearms returned. The shift of the burden of proof, coupled with the impossibility of proving a negative, undermines the rule of law.
With a red flag law in place, the government would bulldoze through at least three constitutionally protected rights before depriving a person of the constitutionally protected right to keep and bear arms.
When considering any proposed law, a good rule of thumb is to imagine the law being enforced by your worst enemy. Universal background checks and a red flag law could be brutally enforced by a despotic government and still not stop a single mass murder.
Governor Evers knows that the Republican Legislature is too responsible to pass these laws, so he has the luxury of posturing for the media. But the governor’s casual and crude disregard for the rights that these laws would trammel is precisely why they should not be passed.