Red-Flag Laws, Civilian Firearms Ownership and Measures of Freedom

This essay provides context for an assessment of a part of the recently-enacted Bipartisan Safer Communities Act--federal legislation funding state red-flag procedures, which allow for seizures of firearms from persons who have not committed crimes. First, it assesses Maryland’s experience during the first year of implementing these procedures. The essay details computations, extrapolating from Maryland’s first-year experience, showing that adoption of these statutes causes blameless persons to be subject to being killed by the government at a rate comparable to or in excess of the murder rate. Second, the essay identifies an overlooked impact of this federal legislation. The legislation’s adoption will necessitate courts more favorably consider firearms rights reinstatement petitions filed by criminals with old convictions. That is because Congressional adoption of this legislation is inconsistent with the strongest premise on which courts have heretofore rejected those claims--that courts are not competent to assess whether individuals have a heightened propensity to commit firearms crimes. Third, politicians admit adoption of the federal statute was a response to calls to “just do something.” As this essay reveals, the resulting legislative spasm arose in the context of public discourse that selectively deemphasizes events highlighting the harms arising from adoption of red-flag laws. Ultimately, of course, the constitutionality the legislative response will be subject to judicial review. Yet concerns that constitutional principles will yield to public pressure are as old as the country itself. James Madison in fact expressed some equivocation as to the desirability of a bill of rights on that basis. In a paragraph of McDonald v. City of Chicago, 561 U.S. 742, 783 (2010), referenced in New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111, 2126 n.3 (2022), the Supreme Court noted an absence of authority in which the Court has “refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.” Indeed, living in a society that respects civil rights involves risks that are eliminated by a police state. Because federal funding of red-flag laws has been triggered by selective public discourse, it is desirable to illuminate, as a counterweight, the salient benefits of the constitutional provision that has been duly adopted and ought to obtain. This essay turns to one approach that may increase the salience of information relevant to contextualizing the judicial inquiry: that the benefits are capable of quantification. This essay expands on the empirical evidence in the law review literature finding a statistically significant relationship between civilian firearms ownership and indices of freedom—higher civilian firearms ownership in a country is associated with greater freedom