Calling a red flag on ‘Red Flag Laws’

In the aftermath of the unbelievable bloodshed in El Paso and Dayton, the usual call for government to do something about the violent use of guns against innocent Americans is louder and more politically within reach than ever before.

This time it is a bipartisan call for more effective, universal background checks for gun purchases. But voices from both major political parties have also called for socalled but undefined federal “Red Flag Laws” that would keep guns out of the hands of those deemed a threat to themselves or to others. The red flag ought to be waved against this proposal itself.

Although no national “Red Flag” bill has been introduced in Congress, or even written, the consensus of those who speak positively about such legislation indicates that those whose writings on social media — Facebook postings, tweets or postings elsewhere — suggest a dangerous threat to themselves or society, as determined by the thought police, could be denied gun ownership and even be committed to an asylum involuntarily.

Oh, any bill on this subject that passes Congress or a state legislature will contain restraining clauses that guarantee no constitutional rights will be infringed, that free speech, specifically, will not be curtailed by the legislation. But having assured us of that, those enforcing the law and the courts that oversee their actions will both be inclined to interpret the power of the law broadly “in this time of national crisis.”

Who will be the targets of the “Red Flag Laws?” That depends on whether the left or the right is in power.

Assume an unexpected Democratic sweep of Congress and the presidency in 2020. A left of center oriented Justice Department would begin searching social media for likely culprits. They won’t be hard to find.

At the top of their list will be right-wing militias, training with arms for the day when, as their literature makes clear, it will be necessary for the people to take back their government and country from a tyrant.

Overtly zealous enforcers will move to disarm militiamen and women, using the “Red Flag Law” as the legal pretext for what seems to be a Second Amendment violation. Some prosecutors may be moved to also enforce the involuntary commitment provisions of such a law.

There is some justification for enforcement of that law, if it is enacted. Not long ago a small band of armed anti-government militiamen in Oregon defied federal law and seized government land and held it for several days through the threat of arms. In a confrontation with federal agents, one of the armed men was killed. Surely, if a “Red Flag Law” is enacted, these are the people, deranged or simply ideologically committed, for whom the law was intended.

But more likely is the possibility that white nationalists, Nazis, Klansmen or other fringe groups on the far right will be the objectives of “Red Flag Laws.” Government may not be able — yet — to silence their hate speech, but it surely can deny them the guns some warped mind or dedicated member may use in another mass shooting to advance their cause. Members of such organizations who post manifestos or simply tweet their views may be singled out for confinement on grounds of mental illness.

But assume that Donald Trump and his party are in power after the 2020 election. Against whom would they invoke the “Red Flag Law?” For starters, the anarchists who attach themselves to legitimate civil protest movements and who destroy property and intimidate the police. While they may never have been armed in the past, those anarchists must surely be kept from acquiring guns. Maybe some of them might even be involuntarily placed in an asylum.

This is not the first time that Congress or a state legislature has been asked to swiftly pass such dangerous legislation aimed at suppressing ideological beliefs by outlawing various forms of speech or writing, or even banning symbols of those ideologies.

Following the communist revolution in Russia in 1919, California’s state legislature passed the Criminal Syndicalism law, under which the leadership of the California Communist Labor Party was sentenced to several years each in prison at San Quentin. Under that law, membership alone in the party was grounds for prosecution, and the writings and speeches of national party leaders were used to convict rank and file members of the California branch of the party.

In the rush to combat the increasingly violent and deadly mass killings by a lone gunman, we must not subvert constitutional rights on the grounds that public safety demands it. Congress and state legislatures have other means to prevent another El Paso or Dayton if the legislators are really serious about doing something effective.