Jonathan Hoffman: Red flag laws and the 'gunshow loophole'

The following column is the opinion and analysis of the writer.

Last year, county sheriffs in Virginia declared their counties “Second Amendment sanctuary counties” and declared that they would not enforce the state’s proposed “red flag law.” More recently, New Mexico passed it’s own red flag law and county sheriffs there are also engaging in resistance.

So, why is there a sudden spate of “red flag laws?” Well, one explanation is that these ballot initiatives and state legislature bills are not homegrown. Activists of all stripes figured out long ago that it is much easier to go state-by-state to get something done nationally than trying to go through the federal government. For example, when California billionaire Tom Steyer wanted to force the nation’s utility companies to move more quickly to renewable energy production, he used his money and his organization, NextGen Climate Action, to run ballot props state-by-state. He started with Michigan, then moved to Nevada, then in 2018 he bankrolled Prop. 127 in Arizona, which thankfully failed.

What do the sheriffs have against these red flag laws? Though the specifics of these laws vary from state to state, they generally involve an accusation that an individual is a danger to himself or others, which leads to the individual’s firearms (oddly other weapons are not included) being confiscated and, after a period of time, a hearing is held in which the individual has an opportunity to convince a judge that he will not commit a crime in the future.

This, of course, flies in the face of the basic tenets of our legal system. For example, under these laws the accused has to prove his innocence, there is a distinct lack of due process, and then there is the potential of someone using the law as a weapon with which to attack another person. Combine those problems with the fact that we are talking about a fundamental right enumerated in the United States Constitution, and most state constitutions (including Arizona), and it’s no wonder that these laws are facing resistance.

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People who are a danger to themselves and others are not a new thing. How has that been addressed up to now?

Well, in Arizona, we have ARS 36-520 through 526, which allows for the involuntary detention for psychiatric evaluation of those who are a danger to themselves or others. Note that the difference between existing law and the red flag law is firearms confiscation, which apparently is the object of the exercise.

Two years ago, Gov. Doug Ducey included “red flag” -type language in a larger bill addressing school shootings. Democrats rejected the plan because it did not include a background check program for private guns sales — something they erroneously refer to as the “gun show loophole”. On Feb. 13, 2020, Ducey gave his State of the State address in Lake Havasu City. According to the Parker Pioneer, he said, “As long as I am governor, there will be no red flag law in the state of Arizona. ... All law-abiding Arizonans are going to have access to Second Amendment rights in our state.”

Finally, there is no “gun show loophole”.

The definition of “loophole” according to Merriam-Webster is, “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded;” yet, there are those who insist that language in the Firearms Owners Protection Act that defines the limits of the law, preventing it from being used to require background checks for private sales, is somehow an “ambiguity or omission. In fact, it is language resulting from five years of negotiation from 1981 to 1986 when it finally passed. It is the clear letter and intent of the law. They are lying to you.