Introduction
Red flag laws can be described as the attempt to prohibit the possession of, and remove access to, firearms owned by individuals who may have a propensity to harm themselves or others. These laws are motivated by a desire to proactively protect the public from gun violence. Proponents generally argue that red flag laws will prevent homicides, suicides, and mass shootings, particularly when resulting from mental illness.
State Senator Scott J. Newman ’73
Senator Newman represents Senate District 18, which includes portions of McLeod, Meeker, Sibley, and Wright counties just west of the Twin Cities. He is a former member of the Minnesota House of Representatives and was the Republican nominee for attorney general in 2014. He currently chairs the Transportation Finance and Policy committee, and vice chairs capital investment.
However, critics of red flag laws argue that Minnesota already prevents the same individuals that would be affected by red flag laws from possessing a firearm. For example, Minnesota already proscribes gun possession by anyone: (1) under 18, absent parental involvement; (2) who is a juvenile, convicted of a crime of violence; (3) committed to the state as mentally ill or maintaining chemical dependency; (4) convicted of domestic violence; (5) who is a fugitive or illegal alien; or (6) subject to an order for protection.[1] With laws like these already in place, the question remains: are red flag statutes necessary? Effective?
Senate File 436 is the proposed red flag legislation filed in the Minnesota Legislature, introduced during the 2019 Legislative Session.[2] As opposed to a thorough examination of the bill, consider the most onerous portion. Section five, titled “Emergency Issuance of Extreme Risk Protection Order” provides:
- An ex parte order, sought by law enforcement or a family member, prohibiting possession of and (mandating?) the transfer to law enforcement of an individual’s firearms.
- The transfer could be temporary or permanent.
- If the transfer is temporary, the owner must pay a processing and storage fee. If the transfer is permanent, then the owner is not compensated and must pay a processing fee.[3]
So, what’s the problem? Senate File 436 presents numerous problems.
First, Senate File 436 proposed various Bill of Rights violations. Specifically, Senate File 436 violates due process rights rooted in the Fourteenth Amendment. Here, a violation of the right to keep and bear arms and seizure of personal property without due process is evident in the extreme. This bill proposes a clever way for the government to seize an individual’s private property without providing for a court hearing or compensating for the loss, all without a criminal conviction or finding of a mental health issue.
Second, as proposed, Senate File 436 compels disproportionate practical effects: This law would more adversely affect the less affluent. Those with the financial means could challenge the government action. However, an individual without money would simply lose their property if they are unable to hire a lawyer and challenge the government action.
Third, Senate File 436 unnecessarily duplicates existing law. If a parent or a family member is truly fearful, a voluntary transfer of firearms can be made under current law. Additionally, the law already allows for court action through other mechanisms, such as an order for protection.
Before even considering a red flag law for Minnesota, we should be absolutely convinced this legislation would accomplish its claimed objective. To date, no such evidence exists.
In conclusion, Minnesota can appropriately balance the interests between public safety and second-amendment rights by enforcing the laws already in place. Red flag laws disrupt that balance without demonstrating any impact on public safety.
[1] See Minn. Stat. § 624.713 subd. 1 (2019).
[2] SF. 436, 91st Legislature (1999-2000), available at https://www.revisor.mn.gov/bills/text.php?number=SF436&version=latest&session=ls91&session_year=2019&session_number=0, (posted January 24, 2019 at 2:47pm).
[3] Id. at Sec. 5.