The idea behind red flag laws—stopping violence with guns before it occurs—is a laudable one. It may even be the case that the pursuit of this goal will help transform the behavioral science of risk assessment for the good of all of society.
An apropos analogy may well be anti-missile missile technology. At the time Ronald Reagan pushed for such weaponry, it was dismissed as something so beyond what technology was capable of at the time that it was dubbed the “Star Wars” program. Decades later, progress has been made, and no doubt that progress is in part related to what was once a visionary pursuit.
Although red flag laws have existed in some states for nearly twenty years, data regarding their use is limited. Often passed in reaction to mass killings, such laws have been invoked more often to prevent suicide than homicide.
The results haven’t been encouraging. There is little evidence that rates of suicide have dropped, and at least ten to twenty confiscations are required to prevent one suicide. It isn’t known how many confiscations would be required to prevent one homicide. It’s likely a higher number, given that gun-related homicide occurs at half the rate of gun-related suicide, making it inherently more difficult to study and predict.
Amy Swearer of the Heritage Foundation makes the argument that red flag laws, conceptually, could be used to disarm people who are considered dangerous, but have neither committed a barrier criminal offense to gun ownership, nor have they been, nor could they be at the time of the red flag proceeding, civilly committed as dangerously mentally ill.
The problems begin as soon as the details get fleshed out. How would “dangerousness” be defined in this context? Most red flag laws do not define any threshold behavior that must be present for the red flag confiscation to occur.
Fundamental fairness requires “dangerousness” to be behaviorally defined, otherwise, regardless of whatever procedural due process is afforded, the law could be “excessively vague” (one reason laws are struck down on judicial review). The behavioral goalposts should define two sets of behavior: one that constitutes clear criminal threat or assault, and another that connotes risk, but that does not rise to the level of a chargeable offense.
The first set of behaviors is best managed criminally, and therefore no red flag action separate from or in addition to criminal procedure is needed to disarm the perpetrator. The second set is more complicated, because the pronouncement about dangerousness there would have to involve expert risk assessment, or speculation.
At the heart of the matter, from my perspective as a forensic psychiatrist, is whether or not the objective science exists to make those decisions in such a way that on balance more lives are helped than harmed. A useful analogy here would be the “number needed to treat” (NNT) and “number needed to harm” (NNH)—a pair of statistical constructs used to assess the utility of medications or procedures objectively.
Applied to red flag laws, the NNT so far may be about 20—twenty confiscations to stop one suicide. That is a poor result—antidepressants have an NNT of between 3 to 5. The number needed to harm—how many confiscations before one life is lost because of the confiscations—is trickier to determine because it is difficult to know who own guns and use them defensively. Furthermore, this sort of analysis is limited in real-world terms; it is a mechanistic, reductionist view of firearms in their easiest-to-define usages for good or bad.
As a Second Amendment advocate, I also know that gun confiscation changes a great deal about society that directly and indirectly leads to lives lost downstream, in ways that exist outside the narrower constructs of suicide, homicide, and defensive gun usage. This is about tyranny and, as a specific example, how tyranny played out in Venezuela. Doctors and nurses peacefully protested the lack of medications and supplies, and were literally dragged off the grounds of their hospitals and arrested, no more than seven years after widespread confiscation of civilian firearms. Not only did the 2012 confiscation not stop the rapid escalation in violence in Venezuela, it removed any remaining checks on the government’s ability to assert its will against its people.
Those that seek to disarm us, however, are apparently unable to see any benefit of firearm ownership and proficiency. Public health, medical, and psychiatric experts spoke at a “Gun Violence Symposium” September 28 in Richmond, Virginia. Although the Medical Examiner’s objective data showed that there is no epidemic of “gun violence,” that didn’t stop the Bloomberg-funded public health machine from pushing their confiscatory agenda.
The state Secretary of Health and Human Services thought that all the infringements proposed by the Governor—such as magazine limits and the “assault weapons” ban—had nothing to do with the Second Amendment. These infringements were simply “evidence-based, best practices” designed to “save lives” advanced by health care practitioners using their “position of trust.” It wasn’t surprising that he genuinely thought that the M4 he qualified with while serving in the Air Force was the same as a civilian AR-15.
The psychiatric expert advancing red flag laws had never heard of the phrase “defensive gun usage,” and struggled to understand the concept, while Lori Haas rejected the idea as “myth” without presenting any supporting data. Each presenter failed to see any downside to disarmament, and each expressed a decided preference for legally-enforced defenselessness. The only thing further from their minds than self-defense was the check against tyranny.
The presentation regarding red flag laws began with a dismissal of the significance of the connection between bona fide mental illness and instead supported the idea that a much broader segment of the population had to be disarmed: those with a constellation of “anger management problems,” “impulse control issues,” and “acute intoxication.” It’s difficult to argue with these needs in theory, but how would the first two be operationalized?
Given that the whole point of the red flag laws is really disarmament, and that their framers have gone out of their way to write them very non-specifically, Orwellian confiscation scenarios are not difficult to imagine, particularly in a state such as New Jersey. That state’s highest court has determined that rules of evidence will not apply during red flag law hearings.
Rather than tout concepts and aspirational goals, I challenge those who support red flag laws to do the hard work of developing, from known cases of firearm-involved suicide and homicide, a validated tool of risk assessment that gives a known number needed to treat with a known error rate. Then, and only then, would fundamental fairness be objectively met.
Then the public could meaningfully debate whether or not the science has caught up with the visionary goal of preventing violence. If the public was so moved, a conversation about how to implement this infringement with procedural safeguards to protect due process rights could then follow.
Until all this happens, Second Amendment rights are too important to experiment with, and no amount of procedural safeguards will be sufficient.
.
.
–Dennis Petrocelli, MD is a clinical and forensic psychiatrist who has practiced for nearly 20 years in Virginia. He took up shooting in 2019 for mind-body training and self-defense, and is joining the fight for Virginians’ gun rights.