“Did you hear about Virginia?!” My mom frantically asked me a few weeks ago during our Sunday family lunch. I was a bit confused. No, I had not heard about “Virginia” as she’d (and many others I have found) referred to “it”. What about Virginia? Within seconds of my Mom asking this question, more discussion broke out as many people at our table began chattering over each other about how Virginia is about to forcibly take guns from gun owners, how dangerous this could be, what it could mean for other states and on and on. At this point, I got an inkling about what was up with “Virginia”.
So, a little personal note about me. Anytime I hear political news from others, I always want to know more than the vague information I’m usually told. In this instance, all kinds of questions began to stir. What law was passed? By “take away” guns, what on earth does that mean? Who would be taking them and why? Under what pretense? Has this law passed? And on and on.
Thankfully, I’ve had some time since that lunch to study up a bit on Virginia—-as that lunch question has not been the only time someone has asked me what I think about what is going on in “Virginia”. So, settle in here, because this is going to be a longer read—and one that I hope informs you and stirs you to greater thought.
Why Virginia Matters
Alright, so let’s get something straight. The Red Flag Law is the law that people are referring to when they mention “Virginia” in frantic concern. However, Virginia is not, I repeat, not, the first state to pass such a law. In fact, Virginia is not even the second state to pass this law. Nope. Virginia is the eighteenth state to pass this Red Flag Law, joining the likes of California, Hawaii, Delaware, New York and so on. In fact, Indiana and Connecticut have had these laws established for TEN YEARS! See a full list here. (Some of you may have known about these laws for years now, but I am, admittedly, just now getting acquainted with them—as are apparently many others).
Ok, so if Virginia is the eighteenth state to pass this law, why am I only now getting asked about “Virginia” and why does it seem like Virginia is the first state to introduce/pass this Red Flag law?
I’ll be honest here, I’m still a bit puzzled about the answer to this question. When I dove into research for this topic, I fully expected Virginia to be one of the first states to have introduced this infamous and—as I find out—egregious law; so, imagine my surprise when I found out it was just one of close to twenty states who have already passed the same law! (I appreciate your thoughts on this, as this is still something I’m working to figure out myself).
My first instinct was to say, “Well, Virginia is the first truly southern state to have passed (Yes, the legislature passed the law yesterday, 01/23/20) this law, so it makes sense that it would stir up more angst, and therefore more attention, than in other states.” By mid December, 93 counties in Virginia had declared themselves “gun safe zones”, saying that they would not follow any new Virginia gun laws that restrict gun rights. (This is a fascinating development as it illuminates the age-old question: what happens to the power of law if there is no one willing to implement that law?)
Following this, I heard stirrings of a gun rally and then heard all the concern about the potential for violence at this gun rally. I then watched as 20,000 gun owners protested the law this past Monday (to no avail it seems) and they did so quite peaceably. They made their presence known. And I believe there are likely plenty more fellow gun owners in Virginia.
So, who knows, perhaps the intense response by Virginians against the law is what caused Virginia to get more attention…but it could also be because of the importance of Virginia.
Historically, Virginia has been the nexus of almost all major shifts in American politics. The Revolutionary War, the Constitution’s ratification, the Civil War—-what makes Virginia so important? That’s a question I still need to read up on, but I do know this. Virginia’s proximity to the capital is of no small importance and therefore, any major changes in Virginia politics are also of no small importance.
The Red Flag Law
What is this Red Flag Law that is causing such a stir? It’s about as simple as it is ridiculous. Let’s put it this way—have you ever seen Minority Report? (love that movie BTW) The premise of the movie is this: “if you can stop a crime (murder) before it occurs, would you?”. And, of course, in the movie, that is what they do. They arrest people for being future murderers, leaving their “prisons” full of people who have never actually committed the crime for which they are serving a sentence.
The Red Flag Law is the Minority Report. “Red flag laws allow courts to issue orders to temporarily confiscate the firearms of individuals deemed to be a risk to others or themselves.” (CBSnews) Family members or members of the same household are usually the ones allowed to do the reporting (who can report depends on the specific state law).
In summary then, state governments are giving themselves the legal ability to punish someone who has been accused of potentially breaking the law in the future. Minority report. This means that, whoever is accused of potentially using their guns (their property) to harm someone in the future, are not given any right to defend themselves or a right to a trial—-and after their guns are confiscated, the burden is upon them to prove their own innocence. Which, even logic shows this absurdity. How can someone prove a negative? How can someone prove they are not going to do something violent in the future? They cannot, which leads me to believe that once guns are confiscated, they will never be returned.
Ok, I’ll back up a second. The Red Flag Law in Virginia works in steps.
Someone (family member) reports a concern about potential violence—someone deemed a “threat” to themselves or society
Court then sends a notification to the “charged” party that they must turn over their guns within x amount of time or the guns will be forcibly removed
If the guns are not turned over, the police are sent to confiscate the guns.
If no one responds to the presence of the police, the police can enter by force to seize the guns or arrest the culprit for refusing to turn over the guns.
So, here’s what happened with the Virginia law, unique from other states.
“A last minute change in the legislation calls for police to first serve a court order notifying a person they have to relinquish their firearms. If said person refuses, the police then have to go back to the court and return with a search warrant. If the person still refuses to relinquish their firearms, they face arrest for violating the court order.”
Positive: unlike some other states, Virginia requires that officials at least notify the accused before banging on their doors—and requires a warrant. Little solace can be found in this, but, when compared to some other versions of this law, there is a silver lining.
There is A LOT to react to here.
How does the government account for the possibility, probability, of a false “report”? The beauty of someone being innocent until proven guilty is that they must be proven guilty. People can make up stories any day, but until those stories are proven in a court of law, the person accused is not held accountable or punished. However, the Red flag law appears to throw this entire premise out the window. Since the entire law is predicated on the belief that someone could be a threat (not that they are), there really is no way to prove the accusation right or wrong. What prevents someone who simply dislikes someone else from lying about their “concern”? Nothing from what I can find.
If someone is truly a threat or going to be a threat, taking away their personal guns is going to do absolutely nothing to prevent them from doing whatever dirty act they were planning to do. Criminals are going to break the law. That is why they are criminals. The law is based on the foolish assumption that someone who is truly a threat won’t just find guns another way. (I understand that the ease of having a gun on hand may prevent some smaller level crimes or suicide, but it would likely not prevent larger scale violent crimes).
If you have read any of my other posts about private property, then you know the importance of protecting private property. The fact that someone is able to accuse someone else of the potential of committing a crime and the accused is then forced to give up their own private possessions—-is truly frightening. And this possession is not just any private possession, it is a private property that was specifically given its own amendment to protect. The protection of our guns is no small thing. This country has not been invaded by other countries for a reason; our government is held at bay for a reason. (There are approximately 300-600 million firearms owned by law abiding gun owners in the United States today.)
How likely is it for members of law enforcement to implement this law—to arrest or forcibly remove firearms from law abiding citizens who have been accused of the potential of a violent crime? This is truly the question. What has been happening in the other states? In Virginia, most counties have already declared their unwillingness to acquiesce to the law, meaning the law, though having just passed, really has no power.
The law sets a dangerous precedent. If government can remove your private property from you because of the potential of a crime—-what else might they be able to do? (Also, what is their ultimate angle? We all know that those on the left have been vying for our guns for years now, and the Red Flag law is just taking us a step closer).
I predict this law will eventually make it to the Supreme Court. I do not think that this law is going to go unchallenged for much longer. It only takes one disgruntled Virginian, blamed for potentially being a threat, refusing to give up his guns— causing his lawyers to issue a class action suit (class action suit: where one of the parties is a group of people who are represented collectively by a member of that group).
The Constitution, State Sovereignty and the Red Flag Law
This is where things get a little dicey for me. The Constitution, as it was originally intended, does not apply to state governments—-meaning neither does the Bill of Rights. That being said, the Bill of Rights has been applied to states for years now—-what to do here causes me consternation.
On one hand, I’m severely displeased at the notion that someone’s firearms can be legally confiscated simply because the individual may do something “bad” with those firearms. However, the larger and stronger the federal government is—by applying the Constitution to state governments—the more extensive the consequences are if the federal government abuses its power. Far more extensive harm can be done by the federal government than any state government.
You may be thinking, well—it’s absurd that you’d even think that the Virginia law is Constitutional or should in any way be defended. I understand, but, as I’ve said before, I always assess all government through the lens of the Constitution. Here’s why I struggle.
So, there is no “real” state sovereignty (sovereignty=the supreme, ultimate authority) anymore. At this point, the Constitution, functionally and according to the Court (courts), applies to states just as much as it applies to the federal government. Meaning, there really isn’t a “point” that state governments have to cross to justify or cause the federal government to “step in” and apply the Constitution. At this point, it’s essentially the courts or Court (Supreme Court=Court) ruling that some state law is unconstitutional and then the state (states) must deal with the repercussions of this.
Historically, the federal government established their complete supremacy over states in the Supreme Court case McCulloch v. Maryland in 1819. This was a monumental case for the relationship between states and the federal government. James McCulloch, the cashier of the Baltimore branch of the Bank of the US refused to pay a tax levied on that bank by the state of Maryland. The Court first said that it is within Congress’ right to set up a bank even if there was nothing explicit in the Constitution saying Congress could do this. John Marshall justified this reach of power by saying the federal government lays and collects taxes, issues currency, and borrows funds—further it says that Congress must do whatever is necessary and proper to carry out its duties–so it can Constitutionally create a bank. (bonus unrelated info here)
The second question answered by this case was whether a federal bank could lawfully be taxed by a state. Marshall said that the US federal government wasn’t established by the states but by the people, so the federal government was supreme in the exercise of “those powers conferred upon it”. In order, then, for these federal powers to be supreme, they had to be immune to state challenge because “the power to tax involves the power to destroy”. From this point on, the federal government and its law were considered supreme over states and their law. BUT the Constitution was still, for the most part, only applied to the federal government as intended.
The thing is, the founders were pretty clear about their desire for states to have sovereignty, meaning the Constitution applied only to the federal government. The 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states are reserved to the states respectively” and Madison says in Federalist No. 45 “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite”. But, as I just explained above, obviously, this is no longer the case…at all.
The biggest shift regarding the Constitution’s application to state governments happened under the 14th Amendment. This stipulated that all rights under the U.S. Constitution must be guaranteed to former slaves—thereby dictating to states that the Constitution was not only protecting rights from federal abuse but also from state abuse. The Civil War’s outcome ultimately decided this. The Civil Rights’ era was also a big era of change as more and more cases began to pit individuals’ “rights” against states’ “rights”. I’ll have to get into specifics at another time.
Of course, for the federal government to actually step in and enforce a Court ruling that declares some state law unconstitutional (be it against Second Amendment rights or something else), the federal government itself has to be following the Constitution…which is becoming less and less the case.
There really is no clear answer here other than—at this point: there is no question in the Court’s (courts’) mind about whether or not the Constitution is applicable to both the federal and state governments, although how they apply and interpret the Constitution may vary. So, on one hand, if I advocate for the federal government to step in and stop Virginia, I’m advocating for something I know to be unconstitutional; yet, if I do not, by default, I support the right of a state government to forcibly remove guns form American citizens. This is the struggle I have when contemplating my feelings on this Red Flag Law. At this point, since the government does apply the Bill of Rights to state governments, I may simply concede to the benefit of the federal government checking the state’s overreach of power. BUT as I say below in my conclusion, there is a major risk in this stance.
This will be an ongoing topic. I plan to write an article about the Second Amendment and ground this current article in more theory. Theory is essential for a topic like “gun rights”. For now though, I hope that this article has informed, entertained and challenged you.
Let me know your thoughts. Why are we just now hearing unrest about a law that has been passed by so many other states? What is so special about Virginia? What do you believe the future holds? And are there stirrings of this law in your states?
This Red Flag Law is no small step in government power—-should it make it to the Supreme Court, one of our most cherished rights will be put under the scrutiny of nine individuals whose rulings always change the course of this country forever. What do we do if they don’t rule in our favor? Their rulings are much more final than a state level law. Do we truly want such a precious right under the microscope of the Supreme Court or are there other ways to reverse the trend? We need to be educated and vigilant to keep our representatives accountable now so that later we do not have to pay the price.
The Liberty Belle
Answers to Questions Asked
Question: Would there be records kept of weapons confiscated, would they be stored, in order to return them to their owners once the Supreme Court declares these laws unconstitutional?
Answer: Based on my studies, YES. The guns would be initially confiscated for the short term while the “accusation” is assessed. If the accusation is found valid, the firearms will be kept longer and stored since they could be returned—the gun owners are responsible for showing themselves “not a threat” in order to have the guns returned (again, a ridiculous expectation and proving a negative is nigh impossible). Whether or not the governments truly intend to keep the guns in storage—-I’m not sure. Perhaps they have another angle and wish to use these firearms for something else.