NY Red Flag law unconstitutional

[Aguila Blanca]

Originally Posted by 44 AMP

Thoughts??

I agree.

How many times have we seen various members here and on other forums ask if a convicted felon is so dangerous that he/she isn't allowed to touch a firearm, why is he/she allowed out on the streets? Why don't we apply that same logic to potential mass shooters. If they're so dangerous that they sholdn't be allowed to possess firearms, why are they free to possess gasoline and Bic lighters, or motor vehicles, or knives, or axes?

[44 AMP]

Not only are they free to obtain other means of mayhem, they are free to use what funds they possess to purchase other guns, on the illegal market. Where the only requirement is having the cash to meet the asking price.

Literally it is a situation where after the guns they had are seized they could be replaced, leaving the "potential" mass murderer in exactly the same position as they were before the seizure, only out the money they had to spend.

So, current red flag enforcement violates our rights, tramples on due process and at most leaves the potential killer merely inconvenienced for a few days, IF THAT, with a net gain in public safety of ZERO. or possibly even less, since the potential killer is now aware they are being watched and will most likely hide their plans and ambitions better, leaving the authorities even more in the dark than they were before. (assuming they even bother to keep an eye on the potential "killer". The might consider taking the guns ended all threat and not bother to keep an eye on someone they probably should....)

How in hell does anyone think this is a good idea?

[Tennessee Gentleman]

Originally Posted by zukiphile

What is the gap in existing laws you are trying to close?

I think the bar is higher for taking away someone's liberty and committing them to an facility than it should be for temporarily taking away their guns.

Originally Posted by zukiphile

The french don't have people flying airliners into Notre Dame, but they let you keep your nail clipper and shampoo.

Not when I was there.

I think school shootings/murders are viewed with much greater horror than a child injured or killed in a car wreck.

Originally Posted by 44 AMP

Why don't we ever hear about this possible course of action? THAT system is already in place.

Apparently the bar is higher to take away one's liberty than temporarily taking away someone's guns?

Originally Posted by 44 AMP

Why isn't that better than just seizing guns, declaring "we're safe now" and letting the (possibly) dangerous person go free???

Because crazy people with guns can and often do more damage more quickly than those same kooks trying to make poison gas or use a knife? Guns are effective at killing others easily and that's why we want them for self defense. As I have said before, in the Nashville case, the 90 pound young lady couldn't/wouldn't IMHO have done the damage she did with a bulldozer or 18 wheeler. The gun gave her the easiest and best means to kill others. So, if we could have gotten her guns away then perhaps she could have progressed with her therapy?

Originally Posted by zukiphile

If you don't know what you are trying to figure out, you don't have a shot at meeting a reasoned goal. If the goal is to just add another law and make the sphere of liberty a little smaller,

I think we know what we want but we gunners might need to input it rather than have others do it not so friendly for our side. It's a problem. I want to make the sphere of liberty smaller for nuts who might have a violent (even if temporary) impulse.

[Tennessee Gentleman]

Originally Posted by 44 AMP

So, current red flag enforcement violates our rights, tramples on due process and at most leaves the potential killer merely inconvenienced for a few days, IF THAT, with a net gain in public safety of ZERO.

So could one be crafted that was more effective?

[Aguila Blanca]

Originally Posted by Tennessee Gentleman

As I have said before, in the Nashville case, the 90 pound young lady couldn't/wouldn't IMHO have done the damage she did with a bulldozer or 18 wheeler. The gun gave her the easiest and best means to kill others.

You didn't read up on those Chinese school knife attacks I mentioned earlier, did you?

[zukiphile]

Originally Posted by TG

I think the bar is higher for taking away someone's liberty and committing them to an facility than it should be for temporarily taking away their guns.

Originally Posted by TG

I think we know what we want but we gunners might need to input it rather than have others do it not so friendly for our side. It's a problem. I want to make the sphere of liberty smaller for nuts who might have a violent (even if temporary) impulse.

Emphasis added.

Originally Posted by TG

So could one be crafted that was more effective?

The synthetic colloquy above helps to clarify. You want to shrink the sphere of liberty for people you assess as nuts "who might have a violent (even if temporary) impulse".

The problem with your question about what could be crafted is the purpose of the COTUS itself. Constitutionally limited government can't properly be expanded just because you or I think someone is a nut and articulate some reason to take their rights. You may find that a frustration when trying to find common ground with people who also want to shrink rights and expand the scope of government, but it's also to your benefit when someone who thinks you are a nut wants to take your rights. You should hope there is no answer to your question.


I'm not a fan of hers, but Ayn Rand made an interesting point. She posited that when someone proposes to take your rights or property, that isn't an invitation to conversation and compromise; it's a declaration of war against you. There's a limit to the utility of her view on communication, but the underlying idea that finding compromise with a hostile idea isn't an inherently laudable task deserves attention.

I'm aware of the draw of civility and compromise. One way to resolve the tension between the bad ideas of people to whom you speak and the coherence of your own understanding is to explain the legitimacy of constitutional limits and the existence of existing state powers. The world is full of nuts and it's a dangerous place in a thousand ways. People who propose to fix the world by growing the state make both worse.

[Tom Servo]

I want to make the sphere of liberty smaller for nuts who might have a violent (even if temporary) impulse.

Back to first principles, that makes the sphere of liberty smaller for EVERYONE. Eventually they'll tell us that ANYONE at ANY TIME, could snap and do something awful. That'll become an excuse for all sorts of overbearing measures, and they still won't stop this.

So, if we could have gotten her guns away then perhaps she could have progressed with her therapy?

Perhaps. And perhaps we can take every person who registers the slightest bit of eccentricity and throw them straight into a mental hospital for the rest of their lives. Where does it end?

I remember an incident right after Columbine in which a high-school principal addressed a school assembly. He told the students, look to your left. Now look to your right. One of those people could be the next school shooter.

What does that DO to people as a group? It encourages them to shun and suspect anyone who's a little odd or different. It stigmatizes people who won't do any harm, and ultimately, the ones who ARE going to do harm slip through the cracks.

Incidentally, the Columbine shooters? On the radar. In fact, the county DA had a search warrant for the older kid's house they never served. Parkland? The police had been to that guy's house more than three dozen times. Sandy Hook? Same thing.

This is largely a failure for our systems to follow up when they should have, and it makes "red flag" laws redundant at best.

[zukiphile]

Originally Posted by Tom Servo

Incidentally, the Columbine shooters? On the radar. In fact, the county DA had a search warrant for the older kid's house they never served. Parkland? The police had been to that guy's house more than three dozen times. Sandy Hook? Same thing.

This is largely a failure for our systems to follow up when they should have, and it makes "red flag" laws redundant at best.

I quoted this because it bears not only repeating, but understanding.

The police in those episodes didn't know that the people involved would murder someone. If the police knew there was a murder imminent they could have done something, but they didn't know. We've all seen video of the sort The Civil Rights Lawyer puts out where a PO thinks he should do something even if the law doesn't allow him to. The problem isn't insufficient police power.

Imperfect and limited knowledge is a permanent facet of the human condition. No law fixes that.

[Tennessee Gentleman]

So, I think I've demonstrated that I support and would require due process to limit such liberty so I won't respond to the slippery slope arguments. Further, I won't respond to "well they could use knives, bulldozers or poison gas" stuff either because the issue is about guns.

Also, I am not a psychologist but my understanding is crazy (like everything else) is not a "one size fits all" and is also time sensitive sometimes and a spectrum.

Several years ago (pre-1968) we had much greater access to guns but virtually no mass school shootings.

The guns haven't changed but something in the crazy world has. I've read many theories about why but I think many like me are willing to explore tools that might help correct that.

I'm not an expert on mental health (and so far I don't think any of you are either) and I'm not an expert on state by state insanity laws (again I don't see many of you are either) but their appears to be a need to craft better tools for crazy folk who have guns other than commitment to an insane asylum for conceivably the rest of their lives which is (and should be) very very hard to do. Since I lack that knowledge then my arguments might not be as good as they could be. I acknowledge that.

I know this site well and the mental orthodoxy about guns that is here as well. However, it seems we have a problem with mental health and access to guns that needs addressing in addition to hardening special places like schools. As I mentioned before, this problem did not exist really in the relatively distant past. So, my posts mostly to generate discussion on whether it is possible to craft laws that better allow our institutions to (using due process) deal better with the issue of nuts with guns.

[Metal god]

Imperfect and limited knowledge is a permanent facet of the human condition. No law fixes that.

Did you just answer all your own questions with that statement? Although you may have just said it best , I believe that’s been everybody’s point . ( imperfect, limited, permanent, human , no law fixes ) and you propose taking people’s property and or locking them up without allowing the person to challenge your assertions, with that much certainty on your side ? That is the very thing. The bill of rights in the constitution is designed to prevent.

will not respond to , well they could use knives, bulldozers or poison gas" stuff either because the issue is about guns.

OMG , No it’s not ! It’s about how you raise your children and mental health . Just like drunk driving deaths are not about the car ! The one thing I agree with you so far is not wanting to respond anymore :-(

[Tennessee Gentleman]

Originally Posted by Metal god

OMG , No it’s not !

Actually it is.

Originally Posted by Metal god

It’s about how you raise your children and mental health

It's only about mental health. How you were "raised" is not part of it.

Originally Posted by Metal god

Just like drunk driving deaths are not about the car

Right it's about the booze and driving when you've had too much, just like this issue is about guns and nuts.

Originally Posted by Metal god

The one thing I agree with you so far is not wanting to respond anymore :-(

Then I won't....to you. Unless, we can get back on point.

[zukiphile]

Several years ago (pre-1968) we had much greater access to guns but virtually no mass school shootings.

Except the ones we did have. http://behindthetower.org/a-brief-hi...mass-shootings

Originally Posted by TG

I'm not an expert on mental health (and so far I don't think any of you are either) and I'm not an expert on state by state insanity laws (again I don't see many of you are either) but their appears to be a need to craft better tools for crazy folk who have guns other than commitment to an insane asylum for conceivably the rest of their lives which is (and should be) very very hard to do.

I described the existing alternatives to that in posts 26 and 44.

If one doesn't know what tools are available already, then the appearance of a need for new laws may be an illusion.

[Tennessee Gentleman]

Originally Posted by zukiphile

Except the ones we did have.

Which weren't as often or in schools.

Originally Posted by zukiphile

I described the existing alternatives to that in posts 26 and 44. If one doesn't know what tools are available already, then the appearance of a need for new laws may be an illusion.

And I've explained that current laws (which you really don't identify other than to say they are there) require a very high standard of evidence to remove the full liberty of the individual indefinitely. We might need something else.

[Metal god]

How you raise your children has nothing to do with there mental health as adults ????? Mental health issues are not just about the big worded conditions. Its about self esteem , knowing the difference between right and wrong , how to play well with others , not to take everything so personal . I could go on and on , these are all things you teach your children at a very young age so they can cope in the world as adults and be a productive member of society. For you to think that how you raise, your children has no effect on what they do in life clearly shows me that you have no children and if you do…… :-(

[Aguila Blanca]

Originally Posted by Tennessee Gentleman

Which weren't as often or in schools.

Non sequitur. Zukiphile specifically responded to your comment about "mass school shootings." You can't claim that "mass school shootings" did not occur in schools.

You may argue that school shootings are more frequent today than they were a hundred or two hundred years ago, but they did happen. The first mass school shooting in the U.S. that I've found in my research was in 1891. 14 people were wounded, none killed. That was 132 years ago, so you can't honestly claim that mass school shootings are strictly a recent phenomenon. The 1891 school shooting took place in Liberty, Mississippi. There was no internet. I suspect it's quite likely that news of the event never spread outside of Mississippi, and probably didn't reach many places within Mississippi. Today, it would be front page news on fifty web sites before the last empty casing hit the floor. It isn't that today's mass shootings are any more deadly -- dead is dead -- but the near instant promulgation of reports of mass shootings by mass media with a collective agenda to demonize firearms significantely changes the dynamic.

However, despite a recent increase in the number of such incidents, the single most deadly school massacre in the U.S. did not involve firearms, and was not recent. It was in 1927, and the weapon of choice was dynamite. Bath Consolidated School massacre. 44 people killed, and 58 injured. And the toll could have been worse. The school had two wings. The bomber had mined both wings, but the dynamite under one side of the building failed to detonate.

Why are these incidents occurring more frequently today? I respectfully submit that it's not because guns are more deadly. Let's face it -- we have had lever action repeating rifles since 1860. The lever action rifle was the "assault weapon" of the day, yet people weren't using them to shoot up schools. What has changed? COMMUNICATION. The Internet -- social media -- YouTube, Instagram, Facebook, and TicTok. The problem isn't a firearms problem, it's a mental health problem, and the fact that a would-be school shooter can (a) research other school shootings almost instantaneously in almost complete privacy, and then (b) become instantly famous by live-streaming his/her attack is what has really changed the school (and other mass) shooting dynamic.

I don't know what the right answer is, but I do know that curtailing the constitutional rights of millions of innocent, law-abiding people in an attempt (which cannot succeed) to prevent that which cannot be prevented is not the right answer.

[Tom Servo]

Originally Posted by zukiphile

The police in those episodes didn't know that the people involved would murder someone.

They didn't have to. They just had to act on what the shooters had already done.

In the case of Columbine, there was a warrant for explicit threats and suspicion of bomb making. Had the police actually served it, they would have found the supplies and plans of the attackers. It absolutely was preventable.

In the case of Parkland, police had been to the shooter's house over three dozen times. Several of those calls were for terroristic threats and domestic violence. Had they pressed charges, the shooter would not have been able to buy guns.

Same with Tucson, in which the shooter was known to have made felonious threats to local officials. Again, arresting and charging him would have disqualified him from possessing firearms.

Same with the Washington Naval Yard shooter, who was able to buy guns because nobody saw fit to charge him for numerous incidents in which he shot at people and things.

Same goes the Sutherland Springs church shooter, who was able to buy firearms because the Air Force failed to report his domestic violence conviction to the NICS system.

And the list goes on.

[zukiphile]

Originally Posted by TG

Which weren't as often or in schools.

That's incorrect. I didn't link the source as a clever way to waste your time. It contains records of events of which you weren't aware.

Originally Posted by TG

And I've explained that current laws (which you really don't identify other than to say they are there) ...

No. I did quite a bit more than say current laws exist.

In post 26, I explain that there is a criminal penalty for menacing, and guardianship for those who need others to care for them. Neither of those are psychiatric commitment.

Originally Posted by TG

... require a very high standard of evidence to remove the full liberty of the individual indefinitely. We might need something else.

If you need a special lower standard of evidence to get your way, you shouldn't get your way.

[zukiphile]

Originally Posted by TS

They didn't have to. They just had to act on what the shooters had already done.

In the case of Columbine, there was a warrant for explicit threats and suspicion of bomb making. Had the police actually served it, they would have found the supplies and plans of the attackers. It absolutely was preventable.

Apologies, I missed that, so my response was inapposite.

Our fallibility shows up even when we do have enough information. That's also a condition no law will fix.

[Aguila Blanca]

Originally Posted by AG (Me)

Why are these incidents occurring more frequently today? I respectfully submit that it's not because guns are more deadly. Let's face it -- we have had lever action repeating rifles since 1860. The lever action rifle was the "assault weapon" of the day, yet people weren't using them to shoot up schools. What has changed? COMMUNICATION. The Internet -- social media -- YouTube, Instagram, Facebook, and TicTok. The problem isn't a firearms problem, it's a mental health problem, and the fact that a would-be school shooter can (a) research other school shootings almost instantaneously in almost complete privacy, and then (b) become instantly famous by live-streaming his/her attack is what has really changed the school (and other mass) shooting dynamic.

https://www.ammoland.com/2023/04/ras...#ixzz7yhSkPyIZ

[44 AMP]

I want to make the sphere of liberty smaller for nuts who might have a violent (even if temporary) impulse.

(buzzer sound)

I cannot agree with this, reasonable as it sounds, because of one word.

MIGHT

"Might" is an acknowledgement of the existence of a possibility. That's all it is. It is not, and should never be taken to mean that a possibility is anything other than a possibility. "Might" has nothing to do with the probability or likelihood of anything. Determining that requires additional evidence.

"Might" (and "might not") are, or might be, the ultimate blanket coverage term. Everything we can think of can be covered under that blanket.

I don't think taking action based solely on "might" is the right thing to do. You might think differently.

Now "nuts"....another word used many ways. In the context of this discussion we are not usint "nut" to describe an entusiast about something but someone who might be dangerous.

The term in common use in today's discussions "Mental Health issues".
Which is yet another nebulous blanket term. And even worse, it is a term with flexible definitions. What is, or is not a "mental health issue" depends on who is making the judgement.

There are still people alive today (though fewer every year) who can remember a time when homosexuality was listed in the standard medical texts as a mental illness. (just one example of how "standards" change)

Literally, anyone who thinks differently than what is considered "normal" (by the person making the judgement) may be labeled mentally ill, or "nuts".

Mental Health is a sloppy nebulous term that can, and has been applied to anyone who thinks differently than you do. And, its more of a net than a blanket, because, like a net, it catches some things and lets others slip through.

We make the (understandable) automatic judgement that someone who commits a mass shooting/mass murder has mental health problems, because, its obvious, sane people do not do such things.

problem is, sometimes "sane" people do such things. OR perhaps more correctly people who are otherwise considered sane, do such things.

We have an almost built in preconception that people judged insane are not capable of detailed logical reasoning or carrying out complex plans.

Some are not. Some are.

The problems that must be overcome in order to craft a "better" kind of red flag law are numerous, and as I see it, primarily are;
(in no particular order, and by no means all inclusive)

The fact that, until an illegal act happens, the suspect is just a law abiding citizen who must be afforded the same rights as everyone else.

While people (and governments) do, they should not act out of fear.

Taking pre-emptive action against someone who has not broken the law is acting out of fear.

I freely admit there are situations where that pre-emptive action is the correct thing to do for public safety. We have laws that cover that and allow it. Generally speaking, the pre-emptive action is initiated when there is evidence of one of those "conspiracy to commit" laws is broken.

I'll use the example of the "mad bomber" who gets arrested before setting off (or sometimes even finishing) their bomb. I consider that a justifiable response, but that is a vastly different situation than what red flag laws are doing.

Another thing a law has to get past is simply that it is a law, and so must meet certain requirements, some of which are that it must be fair, and fairly applied to everyone.
IN order to do that, there must be standards. Specifically defined points that the situation either meets, or does not meet.

What are they to be? WHO decides that? Legislators? Judges? general public opinion based on polls?? Activists for one point of view or another??

For example, we have legal standards to define what is legally a threat. DO vague and creepy social media posts meet that standard? They might, they might not....Everyone has a different point of view, but the law can have only one, otherwise it cannot meet the equal treatment requirement of the law.

Arguments about the "right" way to raise children have a point, but that point ends when the child discovers it has free will. The old argument about "nature vs. nurture" also ignores free will.

The classice discussion example is a "good" family who has three sons. One grows up to be a priest, another a cop, and the third a career criminal.

All have the same nature (genetics or what ever term you apply) and the same nurture (raised in the same environment) but the result is different.
I think the answer is free will.

And I think this also applies to the mass killers, and their "mental health". Some people do those things because they have actual mental issues, and some do it simply because they choose to.

Sane, but extremely maladjusted to society...is that insane? Is it a mental health matter, or a behavioral choice? And, no matter which, how does the law deal fairly with that?

One of the many standards used is does the subject understand the difference between right and wrong? If they know its wrong and do it anyway, its a criminal matter. If they don't know its wrong, then its a mental health matter, so it becomes a matter of treatment for illness rather than punishment for a crime.

The unavoidable downside to this is that all we can ever know is what the subject tells up. And a really good liar can fool a lot of people.

[Tennessee Gentleman]

Here is something happening right now.

https://www.newschannel5.com/news/ne...ssee?_amp=true

Now what you need for context is that Tennessee is one of the most gun friendly states in the nation. Heck, we even have a state rifle (the Barrett 50 BMG). If this Governor is now asking the legislature to craft such a bill you need to realize how much the needle has moved. This would never have happened as little as 4 years ago.

So, back to the original question. Can a bill be drafted that has due process and allow guns to be taken away from nuts? I ask this question in this forum because I think the handwriting is on the wall.

[44 AMP]

So, back to the original question. Can a bill be drafted that has due process and allow guns to be taken away from nuts?

YES
We already have that, and have had for quite some time....like since 68 I think.

The "drawback" is that A) under due process people have to be declared "nuts" by a court, BEFORE the cops can seize their guns and B)that isn't fast enough to make scared people feel safe.

SO they want a new rule, and we got red flag laws, which are hugely flawed legally and practically, but they work FAST and so people FEEL safe. (or some do, anyway )

The tightrope that needs to be walked is to be able to balance, a law that meets Constitutional standards, AND works fast enough to take guns away from "nuts" to make people feel safe and happy.

The variable that cannot be predicted is what will actually make people feel safe fast enough. And, how long it will last. Because you know that when the system fails to stop every single killer, there will be people yelling we need even more restriction, regulation and out right bans where ever possible.

Always remember that there are people who think anyone who owns any gun is "nuts", and their vote counts as much as yours does, and right now, they are yelling very loudly. Whether their point is valid, or not, the people that yell the loudest do get heard.

[Aguila Blanca]

Originally Posted by Tennessee Gentleman

So, back to the original question. Can a bill be drafted that has due process and allow guns to be taken away from nuts? I ask this question in this forum because I think the handwriting is on the wall.

Back in colonial Salem, Massachusetts, the handwriting was on the wall, too -- and a number of people were executed as witches. I don't disagree that the handwriting seems to be on the wall -- my state enacted a red flag law several years ago -- but that doesn't mean they are a good thing. As someone once said, "Democracy is two wolves and a sheep discussing what to have for dinner." The fact that the handwriting is on the wall means that the media and the anti-gun zealots have been successful in promoting their disinformation campaign and convincing the gullible public that inanimate objects are (a) evil, and (b) capable of causing mass shootings.

More directly to your question: Can a red flag law be crafted that provides due process? Of course it can. All it has to do is provide due process -- rather than make the seizure hearing secret and ex parte, a proper due process law would notify the accused of the hearing and allow him/her to be represented and to defend himself/herself. That's all it would take. If the concern is that informing the subject about the hearing would give him/her an opportunity to commit the shooting while waiting for the hearing, that's easy -- make the hearing instantaneous. The police serve the notice of the hearing, not a process server, and they take the person directly to the courthouse and the hearing is held right then and there. If the accused doesn't have an attorney on speed dial, the court will provide one.

That's due process. But the anti-gun zealots don't want that, and they'll never settle for that.

[Tom Servo]

Originally Posted by Tennessee Gentleman

Can a bill be drafted that has due process and allow guns to be taken away from nuts?

Maybe, but I won't accept it under these terms:

if the legislature can't pass an order of protection bill this session, it may only be harder to accomplish next year, once emotions from the Covenant School Shooting have eased.

Operating from emotion is what gets bad laws made. If an idea can't stand on its own merits, it's not worth pursuing.

[zukiphile]

Originally Posted by AB

I don't disagree that the handwriting seems to be on the wall -- my state enacted a red flag law several years ago -- but that doesn't mean they are a good thing. ***
That's due process. But the anti-gun zealots don't want that, and they'll never settle for that.

One aspect of this issue on which I may agree with Tennessee Gentlemen is that the attraction to RFLs isn't only an affliction of anti-gun zealots. In my state, there is a "law and order" sort of sentiment that can be very pro-government so long as the government isn't seen as a thief. In this view, RFLs aren't something one worries about because it won't be applied against normal, suburban nice people. It's a myopic and social way to view government power.

I'm in Ohio, and I've heard my governor defend our version of RFL by falsely describing what it does. Because of the way the politics of the issue aligned, it was an NPR correspondent who pressed the issue with the Governor and got the man to defend it in ways he knew were false.

Originally Posted by 44

The "drawback" is that A) under due process people have to be declared "nuts" by a court, BEFORE the cops can seize their guns and B)that isn't fast enough to make scared people feel safe.

Is anything faster than a pre-existing fear?

Originally Posted by TS

Operating from emotion is what gets bad laws made. If an idea can't stand on its own merits, it's not worth pursuing.

That bolded language may be as close as you'll get to an admission that the goal is to manipulate people to pass a bad law.

Originally Posted by TG

Can a bill be drafted that has due process and allow guns to be taken away from nuts?

What is a "nut"?

What is the burden of evidence to be carried by the prosecutor or petitioner?

Is there any specific sort of evidence that must be present to support a determination of "nuttiness"?

If the respondent is a dangerous "nut", what else is he not allowed to do?

What is the mechanism for restoring the person's rights when the "nuttiness" has passed?

What is the sanction against those who file fraudulent "stop this nut!" petitions?