As NRA-ILA has often pointed out, as ignorance recedes, so does support for gun control. Recent polling in Tennessee conducted by co/efficient shows that when voters are confronted with the reality of “red flag” gun confiscation laws, they prefer vigorous enforcement of existing mental health laws and detainment for those proven to be dangerous over ineffective measures that only serve to undermine Second Amendment rights.
As enacted in a handful of states, “red flag” or “extreme risk protection order” laws grant the government the authority to seize a person’s guns and abrogate their right to possess firearms pursuant to a civil order. Such orders can typically be granted based on weak and nebulous standards of evidence.
Since 1968, federal law has prohibited firearm possession by anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution.” Therefore, those proven to be dangerously mentally ill are already prohibited from possessing firearms. Red flag laws are designed to circumvent the due process typically afforded individuals before they are adjudicated as a mental defective or involuntarily committed, in order to more easily attack ordinary Americans’ Second Amendment rights.
The U.S. Supreme Court decision in New York State Rifle & Pistol Association v. Bruen (2022) suggests that “red flag” gun confiscation orders violate the Second Amendment. Justice Clarence Thomas’s opinion made clear that in order for a firearm regulation to pass constitutional muster it must fit within the text, history, and tradition of the Second Amendment right. Specifically, the opinion noted,
[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
That poses a problem for “red flag” law backers, who are eager to stress the “innovative” nature of the gun control measure.
Following Bruen, a February 2 decision in the U.S. Court of Appeals for the Fifth Circuit invalidated a federal firearms prohibition that is based on a mere civil order. The decision explained,
The distinction between a criminal and civil proceeding is important because criminal proceedings have afforded the accused substantial protections throughout our Nation’s history. In crafting the Bill of Rights, the Founders were plainly attuned to preservation of these protections. See U.S. Const. amend. IV; U.S. Const. amend. V; U.S. Const. amend. VI; U.S. Const. amend. VIII. It is therefore significant that § 922(g)(8) works to eliminate the Second Amendment right of individuals subject merely to civil process.
By this logic, “red flag” gun confiscation schemes would be found similarly unconstitutional.
From May 30-June 1, co/efficient polled a sample of 1,770 likely general election voters in Tennessee on a series of questions, including how to address the dangerously mentally ill and “red flag” laws.
Respondents were presented with the following question, followed by a pair of options,
If a person is threatening to harm themselves or other, what do you think law enforcement should do to provide the most safety for the community?
- Removing the individual threatening to harm others from the community so they cannot access firearms OR cause harm by any other means
- Take away that person’s firearms, but leave threatening individuals in the community
When presented with the reality of what “red flag” laws entail, an overwhelming 84 percent supported incapacitating the person threatening harm.
Later, respondents were asked the following question, followed by three options,
The State of Tennessee already has many laws on the books that allow for the arrest and immediate detention of someone who is threatening violence or deemed dangerous to themselves or others by a law enforcement officer or a licensed physician or psychologist. Is it a more effective solution to?
- Enforce existing laws to remove individuals threatening to harm others from the community
- Enact new red flag laws to take firearms from individuals
- Makes no difference
The likely voters preferred to enforce the existing laws over enacting new “red flag” laws by 38 points.
As NRA-ILA has noted, Tennessee already has broad civil commitment laws. T. C. A. § 33-6-402 provides for the immediate detention of dangerous individuals experiencing a mental health crisis by a law enforcement officer, physician, psychologist, or certain other designated professionals. This procedure can be utilized when,
(1) a person has a mental illness or serious emotional disturbance, AND
(2) the person poses an immediate substantial likelihood of serious harm… because of the mental illness or serious emotional disturbance,
A person detained in this manner is then evaluated to determine whether they meet the criteria for admission to a hospital or treatment resource.
Tennessee could improve funding and access to emergency mental health services. A 2016 report from the Treatment Advocacy Center determined that the Volunteer State ranked 41 out of the 50 states and the District of Columbia in state hospital psychiatric beds per capita.
Further, co/efficient’s polling makes clear that Tennessee voters are willing to support measures that give law enforcement and others the resources they need to protect the public.
In May, Tennessee enacted school safety legislation that provided $230 million in funding to protect schools. This included $140 million to ensure at least one full-time armed school resource officer for every public school.
This legislation is overwhelmingly popular.
co/efficient asked their sample,
So you support the recent bill signed by Governor Lee to enhance safety at public and private schools by adding Police Officers and improving physical security at schools across the state?
77 percent of respondents supported the measure and a mere 14 percent opposed.
Taken together, these results suggest Tennessee voters prefer allocating resources to give law enforcement and others the tools they need to enforce existing law over enacting new laws designed to undermine constitutional rights.
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