Squaring the 2nd Amendment and Red Flag Law

The Second Amendment of the United States reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” It may be surprising, but prior to 2008, the Second Amendment did not give any individual the right to own a weapon.

In 2008, the landmark decision of District of Columbia v. Heller, 554 U.S. 570 (2008), for the very first time, recognized the Second Amendment gives an individual a right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. In McDonald v. Chicago, 561 U.S. 742 (2010) the U.S. Supreme Court also affirmed the Heller decision and made the Second Amendment applicable to state governments.

In the Heller case, the majority opinion, written by one of the most distinguished conservative justices, Justice Antonin Scalia, stated: “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.”

Justice Scalia also specified, “The Court’s opinion should not be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Justice Scalia’s comments simply mean that there are well-established limitations on any person’s right to bear arms.

For example, a law enforcement officer investigating a potential crime has the right to frisk a person for (the) officer’s safety and remove any weapon that individual may have in their possession. Furthermore, if the weapon is part of the evidence being gathered during the investigation, the officer has a right to keep the weapon until further determination by the courts. In New Mexico, anyone carrying a concealed handgun needs a license. Thus, if anyone is concealing a handgun without a license and an officer stops that person, the officer may keep the gun as evidence of a crime. Law enforcement officials also have the right to request search warrants from a judge to seize any weapon that may be part of an investigation.

In New Mexico property owners can prohibit the carrying of firearms onto property they lawfully possess by either posting signage or verbally notifying people that guns are not allowed. Thus, if anyone is carrying a gun in violation of the property owner’s prohibitions, an officer is legally permitted to impound the gun as evidence of a crime. As Justice Scalia explained, carrying a firearm, with or without a permit, is also restricted in many locations or by convicted felons or the mentally ill. Thus, these are just some of the circumstances where law enforcement officers currently have the right to remove and keep firearms until further determination by the courts.

In May of last year, the governor signed into law another gun regulation which many call the “Red Flag Law.” This law is intended to provide a process, with judicial oversight, that allows law enforcement officers to confiscate firearms when there is probable cause to believe that the gun owner poses a significant danger of causing imminent personal injury to themselves or others. This law is reminiscent of practices in Old West movies where the sheriff would confiscate weapons and require everyone to remove their side arms before entering the town in order to maintain public safety or avoid trouble.

Some argue the “Red Flag Law” is simply another tool for law enforcement to maintain public safety, and a more sophisticated attempt to revisit these Old West practices, with added protections of judicial oversight and review. Others argue this law is an infringement of the Second Amendment.

There is little doubt our New Mexico Supreme Court will be asked to resolve this dispute some day in order to protect and define the rights contained in the Constitution. Whatever the outcome, I’m sure everyone can agree that great care should be taken to ensure everyone’s safety. We all know that any weapon, including guns, and some of the people that use them, can be dangerous. Let’s remember that the courts, and ultimately, the Supreme Court, is the proper place to present, argue and resolve any differences — because no one wants any more shootouts at the O.K. Corral.