Governor Bill Lee made a public announcement on April 11, 2023, that he was calling on the Tennessee Legislature to pass a law – immediately – to make sure mentally ill people do not have access to firearms. He did not use the term “Red Flag” law, but that is exactly what the type of law he described would be. Reports from various political observers and Legislators indicate that this public demand for action by the Governor has created a lot of problems for the Republicans in the Legislature – as if they did not already have enough after the national attention from the expulsion vote.
A “Red Flag” law is sometimes referred to as an “extreme risk protection order”. Independent of the label that someone places on it to conceal its purpose, a Red Flag law is a gun control law. It is the darling of the progressive left and gun control advocates. It is a type of law that many conservatives and Republicans will deny supporting in candidate surveys and political pledges.
A “Red Flag” law is a scheme to intentionally violate a constitutionally protected right (gun ownership or possession) by establishing a system where a complaint can be made and an “ex parte” order (that is, a hearing and the issuance of an order without notice to the individual) entered to allow law enforcement to go to a person’s home, residence, place of business and seize all of the person’s firearms (and potentially those belonging to others who also live there). The rationalization for these ex parte seizure proceedings is that the person is sufficiently mentally or emotionally disturbed that the individual posses an immediate risk of harm to themselves or others. The delusional rationalization, the unconstitutional component, is that if government could only seize the firearms that such a person owns or possesses that the risk is neutralized
A “Red Flag” law does nothing to deal with the actual risk – a person who due to mental or emotional health issues is a risk of harm to themselves or others.
When Governor Lee announced his demand for a “Red Flag” law last week, he included the comment that it must have “due process” protections as part of the law. But what are due process protections when it comes to the government’s intentional deprivation of a constitutionally protected right, or even a constitutionally protected “property” right, through ex parte proceedeings?
Although there are many different considerations in the Court’s cases over the centuries concerning what “due process” means in a particular circumstance, at its core the concept frequently includes a requirement that the government simply cannot take someone’s property or deprive the individual of a constitutionally protect ed right without giving them a fair opportunity to contest the action and protect their interests. That is not to say that every “ex parte” proceeding is unconstitutional, but many are.
Governor Lee did not indicate anywhere in his statements on April 11, 2023, what he thought the “due process” protections would be, whether the proposed scheme would be ex parte or whether there would be a notice and opportunity to be heard before any such property deprivation could be ordered. Governor Lee simply threw out a phrase that he perhaps thought might appease or assure conservatives that he was not talking about a “Red Flag” law when in fact he was.
Typically, when Governor Lee calls for the Legislature to pass a law “for him”, that Legislation is sponsored by the respective Republican caucus leaders in the House and in the Senate – which would be Representative William Lamberth and Senator Jack Johnson.
Senator Jack Johnson is quoted by Wate Channel 6 as saying he supports Governor Lee’s call for an enhanced order of protection (i.e., a “Red Flag” law) but he felt that it needed “due process” protections. But, in complete contrast, another news source reports Sen. Johnson stating that “he opposes so-called “red flag laws” because they deprive people of due process, though he acknowledged criminals and people in a severe mental health crisis shouldn’t have access to guns.”
Then, of course, we have yet more confusion regarding Senator Jack Johnson who recorded talking to a constituent and revealing some very troubling character traits about the Sen. Johnson. In that recording, Sen. Johnson states “… if you say “Red Flag” its dead…. ERPO is better and I think that term is so bastardized, its been so tainted, yeah Red Flag laws, so we have to rebrand that in terms of … in able to get something passed”. It might be debatable but it certainly sounds on that clip as if Sen. Johnson is willing to use deceptive or misleading labels to mislead the voters in an effort to pass a “Red Flag” type of law by “rebranding” it as something else.
News reports indicating where Rep. William Lamberth, the House Republican Caucus leader, is on Governor Lee’s call for a Red Flag law are not clear. Wate 6 reports that he said “said all ideas are still on the table and conversations are ongoing.”
But the real question is whether Governor Lee’s wish for a Red Flag law is even within the spectrum of options that are now constitutionally even subject to consideration – even if there is a constitutionally sufficient “due process” provision included in the proposal.
The problem is that the United States Supreme Court has now established a constitutional “stonewall” against which any proposed government regulation or infringement of the rights protected by the Second Amendment must be measured. If the proposal is not one that falls within the range of permissible governmental regulatory options, you never even get to the question of whether it has adequate due process protections.
In June 2022, the United States Supreme Court decided the case of New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022). That decision has created a stonewall against which any proposed government regulation must be measured and a stonewall which will block as unconstitutional many existing and proposed government infringements on the rights protected by the Second Amendment going forward.
In Bruen, the Court stated that the Second and Fourteenth Amendments together guarantee individuals not only the right to “keep” firearms in their homes, but also the right to “bear arms” in public, meaning the ability of “ordinary, law-abiding citizens” to carry constitutionally protected arms “for self-defense outside the home,” free from infringement by either federal or state governments. Id. at 2122, 2134.
The Court held that, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Bruen at 2126.
The Court stated that the only appropriate inquiry would be what the “public understanding of the right to keep and bear arms” was during the ratification of the Second Amendment in 1791. Bruen at 2137–38.
Effectively, what the Supreme Court did in Bruen is to hold that the public debate about the scope of the prohibition on government infringement of the rights covered by the Second Amendment ended in 1791 with the adoption of the Second Amendment. The Court has stated that only those laws that existed as of 1791 and which were sufficiently widespread to be part of the “nation’s historical tradition” as of that time for dealing with issues – any issues – pertaining to civilian ownership of firearms can be considered as options by government today. That is, if the government cannot point to a specific set of laws as of 1791 that dealt with an issue – such as the mentally defective possessing a firearm – then the government cannot rationalize new categories of infringements today.
The burden to show the scope of available options – as of 1791 – to deal with mentally or emotionally ill individuals who pose a risk of harm to themselves or others is on the government, Governor Bill Lee has not identified any such law of national historical tradition that would support his call for any enhanced order of protection, i.e., Red Flag law today. As of today, no Legislator has announced any historical precedent existing as of 1791 would be the basis for a Red Flag law in Tennessee today.
The myth of “due process” when it comes to Red Flag laws is that the Supreme Court said nothing in Bruen about the possible exceptions to its holding that a law of national historical tradition as of 1791 must be shown by the government.
Nothing in Bruen suggests that infringements, such as a Red Flag law, that did not exist in 1791 could pass constitutional scrutiny today if they contained sufficient “due process” provisions. The phrase “shall not be infringement” was written as an absolute but the Supreme Court did craft a narrow exception by historical interpretation and that exception has strict requirements for its application.
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