As we wrote about last week, a cornerstone of the Biden administration’s “Strategic Implementation Plan for Countering Domestic Terrorism,” a plan aimed at curtailing Second Amendment rights under the guise of fighting domestic terrorism, was furthering the use of so-called “red flag” or “extreme risk protection order” (ERPO) laws. What makes these laws so attractive as a tool against the gun-owning community is that their entire premise is speculation as to a person’s alleged risk of future harm and the lack of due process. “As enacted,” we explained, “the laws can extinguish a person’s Second Amendment rights based on weak and nebulous standards of proof and without a hearing for the target of the order to be heard and to present evidence.”
New evidence refuting the premise of red flag laws recently emerged from a distant source, the State of Western Australia (WA) and its new firearms law. Australian news reports (here, here and here) indicate that a compulsory health examination requirement in the law is liable to impede the implementation of the law and may prevent otherwise eligible individuals from obtaining their firearm licenses or permits, all because the government has made physicians responsible for determining whether an individual is a “fit and proper” person to own guns.
One of the many, many requirements in the new Firearms Act 2024 and its implementing regulations is the imposition of “firearm authority health standards,” i.e., “standards of mental or physical health that are prescribed by the regulations as health standards that a person must meet to be considered a fit and proper person to hold a firearm authority” (a “firearm authority” means a license, permit or approval). These standards rest on an evaluation of the person’s permanent or temporary mental or physical condition, illness or disability, use of medications or the medical treatment they receive, use of any intoxicating substances, and the vague “information in relation to the person relevant to a standard provided by a health practitioner.”
Existing holders and new applicants must now successfully complete a “firearm authority health examination,” with a requalification examination every five years until the person’s eightieth birthday, at which point the examination becomes an annual requirement. A failure to comply is sufficient grounds for the government to deem a person not to be “fit and proper” to qualify for or hold a firearm authority/license.
As outlined by WA State Police, the health examination consists of a “self-assessment” form filled out by the holder or applicant, followed by an examination by a medical practitioner (general practitioner), who reviews the self-assessment and conducts a medical assessment. (There is, however, no requirement that members of the medical community participate in offering this service, and no government funding is provided.)
The results are supposed to be provided to the State Police in, essentially, the form of a yes, no, or maybe (“whether the applicant/authority holder meets or does not meet the firearm authority health standards or meets the firearm authority health standards subject to conditions”) but without any specific medical information being disclosed. While this appears to suggest that the privacy of health information is protected, to some extent, from the government, the new law explicitly states that the Commissioner of Police may require the person “to provide the Commissioner with any health evidence provided to the person by a health practitioner in connection with a firearm authority health examination,” and may also “request the health practitioner who provided that evidence to provide the Commissioner with any further information that the Commissioner considers to be relevant.”
A poll conducted earlier by the Royal Australian College of General Practitioners (RACGP) of WA reveals that the vast majority of the state’s general practitioners (GPs) stated they would refuse to conduct the “firearm authority health examinations” necessary to obtain or maintain a gun license, with 79% responding they would not provide these assessments. Only 10% indicated they would conduct these examinations, and the remaining 10% were not sure.
The reasons for refusal range from the inability to predict future behavior with any degree of certainty or already strained workloads, to fears over ensuring confidentiality of patient medical information or concerns over potential liability exposure. Dr. Michael Page, president of Australian Medical Association (WA) emphasized in an interview that that the requirement wasn’t “something that the medical profession wanted to impose or be involved in.”
One critical factor Dr. Page highlighted was that “[n]o doctor can predict who might be unsuitable in the end, or who might commit a gun-related crime in the future. There’s no way to reliably predict that.” A closely related issue was the fear of “doctors being pushed under the bus for not identifying people with unpredictable behavior, which is, by its very nature, unpredictable.” He added that “the way this has been done is perhaps a cautionary tale for other states that might be considering doing the same thing in terms of the onus that it puts on GPs.”
In much the same vein, another spokesperson for practitioners noted that the law obligates GPs to make clinical judgments that fall “outside of the typical scope of practice – particularly when it comes to risk assessment and prediction of future risk.” For GPs “already managing heavy workloads, this introduces an additional layer of responsibility – one that might be both clinically, and at times, ethically challenging.” Other GPs felt “uneasy about making determinations that could have significant consequences for patient relationships and community safety.” Practitioners also “remain concerned that patients may ‘withhold or under report’ mental health concerns, for fear that it could jeopardize their ability to hold a firearms license,” and not only undermine the doctor-patient relationship but actually “work against the broader goals of both public safety and preventive healthcare.”
The response thus far to the Australian law by the very medical professionals that the government expects to implement it exposes the fallacy underlying this country’s so-called “red flag” laws.
As mentioned, red flag/ERPO laws are grounded in an alleged but untested threat of harm, that a person in lawful possession of a firearm may, at some uncertain time, cause harm or commit a crime, and that the risk is abated once a court orders the person to surrender their gun or guns and imposes a ban on future acquisition and possession of firearms. These orders may be issued in the absence of any proof that the person committed a crime using a firearm or indeed, made any imminent threat of violence involving a gun, and generally without any requirement for a mental health evaluation or necessary treatment of the affected individual. One civil rights group observes that this flimsy threshold means “red flag” proceedings could “routinely be used against people who engage in ‘overblown political rhetoric’ on social media.”
The situation in Australia shows that even qualified medical professionals are unable and unwilling to hazard guesses as to whether any particular individual poses a future risk of gun violence. Dr. Page points out that, absent “the extremely rare instance that a patient makes a specific threat of violence to someone else in the presence of a doctor,” there is “no validated tool to determine which patients might act violently in the future,” and politicians and the public must “understand that doctors do not have crystal balls to predict patients’ future behavior.” Placed in the position of having to make judgments that they feel fall “outside of the typical scope of practice,” it seems many GPs will decline to do so.
Judges, morever, tend to have no particular medical, psychiatric or mental health credentials. In the context of a “red flag” hearing, judges are operating in even more of a disadvantaged informational vacuum regarding the subject of a petition than a family doctor, who has at least an actual personal familiarity with the patient. “Red flag” hearings are often ex parte (without notice to the affected person, who is not present to respond to the allegations made), so the only evidence before the court is obviously of the kind targeted at obtaining an order and the preemptive confiscation of firearms.
If there’s any lesson to be gleaned so far from Western Australia’s gun control “reforms” with respect to “red flag” laws, it is to confirm the misguided policy underlying these “punishment now, due process and crime later” measures, which rest on the false premise that unpredictable behavior can be predicted, turn constitutional due process protection on its head, potentially weaponize First Amendment freedom of expression, and strip the Second Amendment rights of innocent citizens for future, not real, offenses.
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