On April 11, 2023, Governor Bill Lee called for the Tennessee Legislature to respond to the public’s emotional response to the Covenant School murders by enacting a law to make sure mentally ill people do not have access to firearms. He did not use the term “Red Flag” but that is the correct label for the kind of law that Governor Lee described as a “new protective order”.

Tennessee’s Legislature has a super majority of Republicans. Many of those Republicans have campaigned as strong Second Amendment supporters and continue to claim that they are. Many of them have told their constituents that they would never support a “Red Flag” law. Some may have answered candidate surveys or signed pledges assuring the voters that they would never support a “Red Flag” law in Tennessee. Now Republican Governor Lee calls on them to violate those promises and assurances and to pass a “Red Flag” law.

A “Red Flag” law is sometimes referred to as an “extreme risk protection order”. Independent of the label that someone places on it to conceal its purpose, a Red Flag law is a type of gun control law and is normally a type of law that the progressive left seeks to enact.

A “Red Flag” law is a scheme that allows almost anyone to claim that a specific individual posses a firearm and that they person is also some degree of risk of harm to themself or others. In some “Red Flag” systems a court has the authority to issue an order to direct law enforcement to seize the individual’s firearms and to notify the relevant government authorities that the individual is banned from purchasing firearms. Generally, the initial seizure order is issued “ex parte” which means that the individual is not notified that the “Red Flag” seizure order is being requested, that a court is considering whether to issue it, or even that it has been issued until law enforcement comes to execute the order and seize the individual’s firearms.

The individual has no “due process” options to oppose the initial ex parte hearing or order. The individual has no opportunity to be represented by an attorney at the initial ex parte hearing. The individual has no right to have an attorney appointed for them before their constitutionally protected rights are trampled. Depending on the order, it can be in effect for weeks, months or even years.

In many of these “Red Flag” schemes, the individual does have the ability to engage an attorney after the ex parte order has been issued and typically after the firearms have been seized to challenge the order. However, that may require that the person expend substantial amounts, likely thousands of dollars if not tens of thousands of dollars – to hire an experienced private attorney to represent the individual. It may require that the individual hire a qualified doctor as a “trial expert” to assess the individual and testify concerning the individual’s mental health status – something that itself could cost several thousand dollars. In some instances, the burden is on the individual to prove that they are not a risk or that they are not mentally or emotionally unstable. The fact is it could easily cost the individual tens of thousands of dollars to attempt to protect their constitutionally protected rights and frequently they are not entitled to be reimbursed their legal expenses if they win. Further, there is generally no adverse consequences on the person or persons who initiated the “Red Flag” seizure process if the court later finds that the order should not have been granted.

If the ex parte order is issued it is not necessarily limited to just taking firearms away from the individual’s possession. In doing that, it could have other negative complications if the person’s job involves carrying a firearm such as a law enforcement officer, an armed guard, private security, potentially airline pilots, etc. Further, it does not limit the capacity of the individual to get possession of other things such as knives or other items that could be used to inflict serious bodily injury or death.

Quite simply, the Red Flag scheme is not intended to deal with the risk – which would be an individual that has a probable propensity to engage in immediate violence due to mental or emotional health issues. The “Red Flag” scheme could care less about that risk because its purpose is not to address the risk, it is to implement gun control.

Governor Bill Lee called on the Tennessee Legislature to respond to the Covenant shooting and the emotional responses to that event. He calls for the Legislature to enact something in the next few weeks. Essentially, he calls for a quick emotional response that has the clear agenda of infringing the constitutionally protected rights of some individuals.

One significant concern with Governor Bill Lee’s response to this situation, particularly following the incidents involving the expulsion of certain Democrat House members who broke House rules to demand more gun control, is that he is calling for “something” to be done now. Nothing in his statements indicate that he has considered the potential constitutional limits on what options may exist.

The question that needs consideration is whether the Governor or the Legislature even has the constitutional authority now to enact a Red Flag category of law. Certainly, some states have done so but in most of those instances, those states did so before the United States Supreme Court imposed a new standard for the scope of constitutionally permissible authority for any government entity to enact or retain laws that impact rights protected by the Second Amendment. That standard changed in June 2022.

In New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022), the United States Supreme Court stated that the Second and Fourteenth Amendments together guarantee individuals not only the right to “keep” firearms in their homes, but also the right to “bear arms” in public, meaning the ability of “ordinary, law-abiding citizens” to carry constitutionally protected arms “for self-defense outside the home,” free from infringement by either federal or state governments.  Id. at 2122, 2134.

 

The Supreme Court held that, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  To justify its regulation, the government may not simply posit that the regulation promotes an important interest.  Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.  Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”  Bruen at 2126.  The only appropriate inquiry, according to the Supreme Court is what the “public understanding of the right to keep and bear arms” was during the ratification of the Second Amendment in 1791.  Bruen at 2137–38. 

Although the Supreme Court’s decision in Bruen is less than a year old, it is already having major changes across the nation as many laws which previously had been approved by federal appellate courts as “constitutional” are being struck down now as unconstitutional.

Take for example the issue of an order of protection (such as Governor Lee referenced) that contains a prohibition on the individual possessing or purchasing firearms. That issue came before a federal district court in November 2022 in the matter of United States of America v. Litsson Antonio Perez-Gallan.

In Perez-Gallan an individual who had an ex parte order of protection issued against him in Kentucky was stopped in New Mexico and found to be in possession of a firearm. Federal law provides in 18 U.S.C. § 922(g)(8) that an individual who has an order of protection against them cannot purchase or possess a firearm. The court noted that the United States Supreme Court had in Bruen put the burden on the government to prove that any restriction or infringement on an individual’s right to keep or bear arms (which includes purchasing) was part of the “nation’s historical tradition” as of 1791. In looking at this issue, the court in Perez-Gallan concluded:

The court in Perez-Gallan thus found that orders of protection – what Governor Lee proposed on April 11, 2023 – are unconstitutional under Bruen to the extent that such laws have the consequence of prohibiting an individual from purchasing or possessing firearms.

In another recent decision, a court in New York state was called upon to consider whether New York’s “Red Flag” law violated the Second Amendment under the Bruen standards. In G.W. v C.N., 2022 NY Slip Op 22392 [78 Misc 3d 289] (December 22, 2022). In that case, the New York court declared the state’s Red Flag law – what Governor Lee proposed on April 11, 2023 – to be unconstitutional.

The standard imposed on government authority by the Supreme Court in Bruen, places the burden on the government to demonstrate before it violates a constitutionally protected right (otherwise the Federal Civil Rights Acts are relevant) that the proposed law was either part of the nation’s historical tradition as of 1791 or that it is a close analogy to a law that existed at that time.

Governor Lee called for the Legislature to react to the emotional response of some citizens after the Covenant murders and more particularly after the expulsion of two Democrat House members who demanded gun control. Nothing in Bruen authorized knee-jerk emotional responses to murders or the calls of progressive Democrats and their mobs to justify government infringement of a right protected by the Constitution.

The Supreme Court made clear that in order for a government to have constitutional authority to enact any law that might remotely impact a right protected by the Second Amendment, the government bears the constitutional burden as a condition precedent to enacting such a law to clearly demonstrate that the law or restriction satisfies the constitutional threshold standard set forth in Bruen.

Failing to clearly satisfy that condition precedent exposes the state and public actors to charges that they have engaged in Federal Civil Rights violations – which is what has recently happened to another law champion by Governor Bill Lee and where the state admitted that provisions of his 2021 permitless carry law violated the Second Amendment, violated the Fourteenth Amendment, constituted Federal Civil Rights violations and required the state (taxpayers) to reimburse attorneys fees to the victims of those civil rights violations.

This is not a time to follow a call to passing something, anything now to show the “mob” that Tennessee Government responds to emotional calls for gun control. Now is the time to determine first what constitutionally permissible options exist, if any, to deal with the risks on society by those who have serious mental health issues and how those mental health risks can be addressed without violating the constitutional rights of anyone.