Legislation that would allow "red flag" orders barring people deemed a danger to themselves or others from access to firearms is struggling in Juneau — and for good reason.
House Bill 75, introduced last year by Anchorage Democratic Rep. Geran Tarr, would deny — before a crime is committed — a person access to firearms and ammunition after a police officer, a judge or a magistrate deemed him or her a "dangerous individual."
The measure defines a "dangerous individual" as someone who is an immediate danger to themselves or others, or who will be a risk "in the future." A mentally ill person who does not "voluntarily and consistently" take their prescribed medications can be classified as dangerous. Documented evidence that would "give rise to a reasonable" belief a person has a "propensity" for violence or unstable conduct also could classify a person as dangerous.
The definition seems vague enough to strip almost all Democrats, politicians and bureaucrats of their firearms forthwith. They are, it could be argued, immediate or future dangers to everybody.
The measure goes even further. It allows warrantless seizures of firearms if a peace officer believes a person is dangerous — although the officer would have to petition the court for a protective order against the person within 72 hours. It also allows judges to issue 20-day "ex parte" orders if a peace officer petitions the court and establishes probable cause that "the respondent is a dangerous individual, that less restrictive alternatives have been tried and were ineffective. …"
Remarkably, there is no provision in the pending legislation for mental health help for those identified as dangerous. The measure simply strips dangerous individuals of guns and ammunition — in a state were guns are readily available — and does nothing to address the underlying problem. Add to that: The potential for abuse seems off the chart.
Despite President Donald Trump's shocking exhortation in the wake of the Marjory Stoneman Douglas High School killings to "take the guns first, go through due process second," there is the necessity of balancing constitutional protections and danger. It is a formidable task — and it should be.
The Parkland, Florida, carnage and the systemic failures that allowed it leave no doubt something must be done to allow intervention before a crime. But what? And at what cost?
At least six states, led by Connecticut, allow some form of "extreme risk protection orders," or "red flag" orders. Florida joined the list after the Marjory Stoneman Douglas shootings, and 19 legislatures are considering such measures. Similar bills are making their way through Congress.
The National Rifle Association, representing 5 million members, historically has opposed such measures, claiming they do not adequately protect due process and are open to abuse. It has fought such measures in at least 17 states. It does not support the Alaska legislation.
Notably, almost immediately after the Florida killings, Chris Cox, chief lobbyist and principal political strategist for the Institute for Legislative Action, the NRA's lobbying arm, said Congress should provide funding for states to adopt "risk protection orders."
In the comments section of a Cox video on YouTube, the NRA laid out what it would take for the organization to support such legislation.
Among other things, the NRA said protective orders should include criminal penalties for those who lodge "false or frivolous charges." An order should require "clear and convincing" evidence the person is a "significant" danger to themselves or others, the organization said.
Judges should be required to determine whether the person meets the state standard for involuntary commitment. "Where the standard for involuntary commitment is met, this should be the course of action taken," the NRA said.
If an order is granted, the subject "should receive community-based mental health treatment" as a condition of the order and "any ex parte proceeding should include admitting the individual for treatment."
Depriving a person of their Second Amendment rights should be temporary and only following a hearing before a judge, where the person is allowed to offer evidence, the NRA said. Also, there must be a "mechanism" to return firearms at the termination of the order, and the process "should allow an individual to challenge or terminate the order, with full due process protections in place."
The legislation pending in the Alaska Legislature simply does not appear to meet those standards, which seem reasonable enough when you consider we are talking about depriving someone of a measure of their freedom before they commit a crime.
Cynics and the left, I suppose, would claim the NRA's stringent requirements for supporting such legislation may simply be an example of the perfect being the enemy of the good — or seeking the impossible to dodge the possible. But simply doing something — and not the right thing — comes at a high cost.
Alaska lawmakers are right to be wary of the legislation.