new hampshire red flag gun control
Second Amendment supporters gather outside the New Hampshire Statehouse (AP Photo/Holly Ramer)

By Robert B. Young, MD

[Doctors for Responsible Gun Ownership was asked for written testimony regarding a badly conceived, intended and written bill that the newly Democrat majority legislature would enact as an Extreme Risk Protection Order law in New Hampshire. This is what they submitted.] 

Doctors for Responsible Gun Ownership is a nationwide advocacy and watchdog group that for the past 25 years has insisted that science be used objectively in matters affecting Americans’ Second Amendment right to keep and bear arms. We teach what good science shows—that guns in responsible hands save lives, reduce injuries, and protect property by preventing violent crime.

First, please see DRGO’s statement on Protective Orders, along with our official position paper on “Firearm Confiscation due to Dangerousness”. Such laws are variously called “Gun Violence Restraining Orders”, “Emergency Risk Protection Orders”, “Red Flag Laws”, etc.

We do not approve of stigmatizing the mentally ill, and are concerned that they receive proper treatment whenever needed. Only about 4% of violence in society is attributable to (usually major) mental illness in perpetrators, but every person we identify as needing help for that or other reasons should have it.

DRGO supports the concept of trying to protect society from individuals identified as potentially dangerous to themselves or others. The problems arise in how to identify them, how to intervene, and how to ensure that both the complainant’s and the subject’s rights are protected. No “Red Flag” laws enacted so far ensure these adequately, and the proposed New Hampshire law is worse than most. At their core, confiscating people’s guns infringes both United States (Second Amendment) and New Hampshire (Article 2.-a) constitutions’ guaranteed firearm and other rights.

Identifying acutely dangerous individuals is fraught with uncertainty. The best reliability comes from in-person examinations by forensically trained psychiatrists, and their assessments are accurate only about 60% of the time for perhaps the subsequent 24 hours. (Note that 50% accuracy is random.) People who see something should say something, and unlike in Parkland, Florida, authorities should do the right thing. So lay people reporting concerns is desirable, and a court’s finding must precede legal action. But expert evaluation needs to be incorporated, which has not yet been required in any state’s ERPO law and is missing from NH HB 687.

Even expert evaluation can only identify likelihood of immediate dangerousness, and NH HB 687 leaves undefined how far into the future concern may lie. Neither does it specify what degree or type of “bodily harm” is actionable. None of this abides by American tradition that punishment (including deprivation of rights) may only be applied on conviction of a crime. This is unconstitutional “pre-crime” punishment for acts that are anticipated, but have not been committed.

Similarly, no ERPO law yet, including NH HB 687, provides for any, in U.S. Attorney General Barr’s words, “up front due process” (i.e, notification of the action to the subject with the right to representation by legal counsel and to confront the accuser) as guaranteed by the Fifth, Sixth and Fifteenth Amendments to the U.S. Constitution. Thereby, the Fourth Amendment’s guarantees of equal treatment and against unreasonable search and seizure are contravened. Like the U.S. Constitution’s guarantee that “the people’s right to keep and bear arms shall not be infringed”, the New Hampshire constitution guarantees that “All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.”

The very wording of NH HB 687 is objectionable and insulting to all New Hampshire gun owners, and is egregiously false: “that respondent poses a significant risk of causing bodily injury to himself or herself or others by having a firearm or any ammunition in his or her custody or control or by purchasing, possessing, or receiving a firearm or any ammunition.” The possession of a firearm or ammunition in no way creates “risk . . . to . . . self or others”.

There are well over 300 million firearms in civilian hands in the United States, in more than 40% of households. If “having a firearm” causes risk, how can it be that less than 0.005% of these guns and less than .01% of gun owners are involved in shootings each year? (These numbers include suicides, justified homicides, murders and accidents). In recent years, there have been from 86 to 132 shooting deaths annually in New Hampshire among its 1.3 million+ residents. That is a rate of less than 10 per 100,000, about our nation’s average. Shootings are not even in the top 15 causes of death in this country (though make up a portion of overall suicides and homicides, which fall into that list).

There must be a clear definition of the real reason for alleged dangerousness based in action or threat. Means need to be addressed, but are incidental to the proper purpose of an ERPO, which should be to protect people from dangerousness by any means. The proposed definition would justify confiscating firearms from anyone just because they possess them.

As with domestic violence restraining orders, it is appropriate to levy penalties for false reporting, which will undoubtedly occur with EPROs, too. (NH HB 687 is concerning because making a false report would only be a misdemeanor offense, disproportionate to not complying with a gun confiscation order, which would be a felony.) But there is no equivalence in these two kinds of orders. No one has a right to be with someone who is afraid of him/her, and no Constitutional right is infringed by a domestic violence restraining order.

Any act or threat that would justify infringing a Constitutional right must be serious enough to fall into existing criminal and/or mental illness arenas, and should explicitly require criminal charges and/or commitment to psychiatric evaluation and treatment. This requirement is missing entirely in NH HB 687.

Executing EPROs is itself clearly dangerous, and puts both officers and subjects at risk. Recently in Maryland, a man was shot to death when he acted to defend against a home invasion, which was actually an EPRO secretly initiated by family. Their concern for him was realized, not by his initiating harm, but due to executing the EPRO.

EPROs as thus far imposed are extreme solutions to rare problems and may cause more harm than they prevent. They provide excuses for “Star Chamber” hearings that approve legalized “SWATting”. They are political window dressings to appear that someone is “doing something about gun violence.” Unfortunately, New Hampshire’s NH HB 687 is more of the same.

 

DRGO Editor Robert B. Young, MD is a psychiatrist practicing in Pittsford, NY, an associate clinical professor at the University of Rochester School of Medicine, and a Distinguished Life Fellow of the American Psychiatric Association.

This article originally appeared at drgo.us and is reprinted here with permission. 

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37 COMMENTS

  1. A well thought out, clear, elegant plea against the proposed legislation.

    Likely to be ignored- because some type of action is needed.

    The nature of politics.

    • Agree, well-written dissection of a poorly conceived law.

      However…
      Democrats – both peons and the elected types – do not respond to facts, logic or Law…only their feelz.

      I’ve brought this up to a Prog Demo I know (at a Dr’s office) regarding Sanctuary States / Cities…his response was “yeah, so what, BAD law should be ignored”. When I mentioned that opens the door for individual interpretation of ANY law he was offended that I would consider disobeying laws HE considered relevant.

      You will never change their base reasoning process. Conservative thought versus Progressive Democrat thought is like mixing oil and vinegar…the result looks homogeneous, but, after a minute or two separates out to the original layers.

    • these laws are a “sword of Damocles” hanging over us all….and their passage was initiated under a republican administration…hard to tell who your friends are….

  2. Challenges the accepted narrative dejour. Move on, nothing to see here, this’ll be gone in a few days.

  3. If the Massholes that have invaded Vermont,New Hampshire and Maine and a few other holes,have their way it will be a done deal,however Unconstitutional.

    • constitutional review of these laws needs a fast tracking through the courts…..especially when it leads to the death of innocent people….and it has…and it will…

    • While it’s popular to blame flatlanders for our woes, the data suggest that those who move here are huddled Massholes yearning to breathe free, not those seeking to impose the same stifling government they’ve moved away from.

      “While conventional wisdom might suggest it’s liberal voters who are most likely to move north from Massachusetts, Smith and Scala say Bay State migrants have turned southern New Hampshire border towns into one of the biggest Republican strongholds in the state.
      The border towns of Pelham, Salem and neighboring Derry and Londonderry are solidly Republican turf, partially influenced by conservative Massachusetts residents moving to a state with lower home prices and fewer taxes.”
      https://www.concordmonitor.com/politically-important-new-hampshire-has-a-very-mobile-population-5823837

      • DaveL, Tell that to some folks in Florida, they think that like Ca residents are here coming to stifle our rights as in Nv and Wa. Many of us “yankees” are trying to breath the free air.

  4. Can’t we get Red Flag Laws reviewed as contrary to 5th amendment Constitutional rights? Or has this already been challenged on same logic?

    • It’s hard to get a good case with standing. I expect circuit level cases in the next couple of years.

  5. It’s interesting: Someone claims I’m nuts and the gendarmes come confiscate my firearms. I’m still out here, though. So, I decide to use: my vehicle (pretty efficient), knives, gasoline, other explosives, a garrot, ball bat, bleach and ammonia, chainsaw (YEAH, Baby!), my teeth, you name it.

    If I’m nuts and I’m left out here even without my guns, I’ll find a way to gain my notoriety.

    Thank God I’m not nuts.

    (Or am i? 🙂 )

    • So if you are nuts and the court recognizes that you are a danger, who will be responsible?

      • I was trying to make the point that if I am adjudged (as in via due process) to a hazard to the safety of others, I should be taken in for some sort of rehab or treatment, not the guns. Leave a crazy bent on mayhem in the general public and he/she/it will find a way to create the carnage they desire, along with the notariety. If they take in a human, there are undeniable Constitutional protections that must be observed. Take my property and it gets pretty grey.

        I know some will think I am oversimplifying this. UI understand all of the ramifications of both scenarios as well as many others. I’m just trying to stay out of the weeds for a minute- the postings here always seem to end up there quickly.

  6. Off topic, but I hope the gun community is aware of the two cops in Bolivar, MO who searched the hospital room of a stage 4 cancer patient for weed. Google Bolivar is you have not seen this total abuse of police powers by Barney Fifes.

    I’m usually a strong supporter of law enforcement, but this case make me want to puke.

    • The WoD is a failure for in terms of it’s stated goals.

      In terms of it’s unstated goals, it’s a smashing success.

  7. Who The F$!# voted for these Demo-Authoritarians in the “Love Free or Die State!” ARE YOU MORONS !!?? LOOK A MASSACHUSETTS–“A Authoritarian STASI Police-State !!!!”

  9. The force aligned against private gun ownership don’t care. They are going to do.this piecemeal until they have made it nearly impossible to own firearms. If the SCOTUS completely rules against it all they will ignore it just like immigration and drug laws.
    This is the New Normal.

  10. I have had a few discussions with doctors over this. My doctor for 20+ years retired early from my HMO because of this(she was pro gun, and was forced to take down photos of a deer hunting trip that were in her office). Other doctors I have met socially see the result of drive-by shootings and suicides by gun in the emergency room and are affected by it.
    When I ask them about my rights to self defense, they just pooh-pooh the idea, saying that it is to rare an occurrence for me to need firearms for self protection(what about the shootings and attempted suicides they see????). This is a NWO and global answer. The powers in the industrialized world do not want the rabble to be able to fight back against their wanttabe Nazi like dreams. These captains of industry want control over the slaves in their Utopian society.
    I want no part of their society.

    • Tell the anti-gun medical people you don’t need a gun as long as you have a baseball bat. It’s all the same whether an assailant is incapacitated by bullet wounds or a fractured skull. Watch their reaction. It’s not so much the gun they object to. It’s the idea of protecting yourself by the use of force. Their attitudes are conditioned by their professional responsibility to treat the criminal and his victim the same.

      • no,..it’s the guns…and if you own them you may as well paint a target on your back….

  11. I concur. But is there some irony here, Robert Young, a doctor. For those of a young age check who played Marcus Welby.

  12. Anyone too dangerous to possess firearms is too dangerous to have running around loose. It’s not just mental illness. There are drug addicts and the just plain evil. Women in my city have been murdered in many ways that don’t involve firearms.

  13. Authoritarianism is a growing trend that is on the rise globally and is being supported by the people subject to its rule. One of the main complaints the left have of trump is that they see him as an authoritarian figure. However despite this they are willingly providing the government with more leverage over their own lives (with laws such as ERPOs). The whole phenomenon baffles me.

  14. The thing that makes laws like these so infuriating is that the underlying concept is reasonable- if person exhibits a “red flag”, there should be intervention of some kind. Perfectly reasonable.

    But then they turn it into a gun confiscation scheme instead of actually helping the individual and/or the ones that need help.

    • Indiana started all this more than 10 years ago. But hay, that are a very pro gun state, so it MUST be a confiscation trick.

  15. Just make drugs illegal and that will end all violence, robbery, most crime, right? I guess it’s easier to get guns off the street than drugs. The MSM will never see the the real problem….or they do and it’s better news to just ignore it.

  16. “Recently in Maryland, a man was shot to death when he acted to defend against a home invasion, which was actually an EPRO secretly initiated by family.”
    Support for this claim?

    “When officer arrived to serve an order Monday, police say 61-year-old Gary Willis answered the door with a gun. He put it down, but later became irate and grabbed the gun. When an officer tried to take it, Willis fired. A second officer shot Willis, who died on the scene.”
    http://www.startribune.com/police-serving-order-to-remove-guns-shoot-kill-armed-man/499650271/

    There is plenty of basis for opposing these laws without resorting to distorting the truth as our opponents do.

  17. It has puzzled me that so many formerly conservative states are flooded with newly elected leftist governors and representatives. Either too many conservative voters have opted out of voting or the voting is massively rigged. Probably a combination of both, but I lean toward the rigging explanation as the Demos have practically turned that into an art form.

  18. their assessments are accurate only about 60% of the time for perhaps the subsequent 24 hours. (Note that 50% accuracy is random.)

    I’m not sure this makes sense. If a binary random variable has a uniform distribution (i.e. it can be “true” or “false” with each equally likely), then random guessing would be expected to produce 50% accuracy. However, if it is NOT uniformly distributed, you can get better than 50% accuracy just by always choosing the more likely outcome. So if more than 60% (or less than 40%) of people interviewed by shrinks are actually a danger to themselves or others, they can get 60% accuracy without any expertise or even thinking, simply by labeling them all (or none of them) dangerous.

  19. NH resident here. How long before mentally ill people stop seeking help because they’re afraid to be in the system, to draw attention to themselves, for fear of losing gun rights? Counter-productive to scare people away from therapy/treatment.

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