Under pressure to “do something” about mass killings, some Republican politicians have followed their Democrat counterparts by endorsing red flag laws. These laws authorize confiscation of firearms if a judge finds the owner poses a risk to himself or others.
But the history of red flag laws should make those politicians reconsider.
Modern red flag laws deny gun owners prior notice or a chance to defend themselves against an initial confiscation order. A judge may issue the order after an uncontested hearing. In some states, the person seeking the order is held to a relatively low burden of proof.
This disregard for due process would be wrong even if red flag laws were proven effective. But the few studies on the subject suggest they are not. One study even concludes that these measures may increase rape.
In politics, if we know a proposal doesn’t serve its advertised purpose, then the advertised purpose usually is not the real one. In this case, the dominant motive seems to be to take guns away from people, despite the undeniable role of firearms in self-defense and crime prevention.
Ironically, by adopting the term “red flag law,” promoters inadvertently admitted their real motive is not safety. This is because the phrase “red flag law” has been proverbial for an enactment masquerading as a safety measure but really passed for more sinister reasons.
Here is the background:
Many people think automobiles were invented around the turn of the last century. But a steam-driven car successfully navigated the streets of London as early as 1803. A car powered by an internal combustion engine was designed in 1808. By mid-century, steam autos appeared regularly on English roads.
This new invention—then often called the “road locomotive”—posed a financial threat to entrenched special interests. Railroads and horse-drawn carriage services (such as stage coaches) feared competition. Buggy makers and farmers who raised horses for sale recognized that automobiles could reduce public demand for their products.
So instead of adapting to the market, those special interests lobbied politicians for laws protecting them from competition. The advertised reason was automobile safety. But the dominant motivation was to regulate automobiles into oblivion.
Beginning in 1861, the British Parliament and some American state legislatures and cities imposed draconian restrictions on “road locomotives.” Some enacted absurdly low speed limits such as two miles per hour in town and four miles per hour on the highway. (Light horse-drawn carriages routinely ran down the highway at 12 miles per hour). Another rule was that any person with a horse could force a car to stop for any reason or for no reason, simply by raising his hand. A Pennsylvania bill (vetoed by the governor) would have required the owner of any automobile who encountered a horse or other livestock to dismantle his vehicle and conceal the parts in the adjacent bushes!
The most famous enactment of this kind was the British Locomotive Act of 1865 (28-29 Vict. c. 83). Among other regulations it mandated that every car have a crew of at least three persons, one of whom was to “precede such Locomotive on Foot by not less than Sixty Yards, and shall carry a Red Flag constantly displayed, and shall warn the Riders and Drivers of Horses of the Approach of such Locomotives, and shall signal the Driver thereof when it shall be necessary to stop, and shall assist Horses, and Carriages drawn by Horses, passing the same.”
The requirement that a crew member precede the car with a red flag gave these restrictive enactments their popular name: red flag law.
Unfortunately, red flag laws stalled automobile progress for years. After they were loosened late in the 19th century, progress resumed. That is why many think of cars as not being invented until the late 19th or early 20th centuries.
In 1904, John Scott-Montagu, a British M.P., wrote a survey of automobile laws for an American scholarly journal. Scott-Montagu decried “the continual, misdirected effort of the law to control vehicles about which the law-makers have had, as a rule, but shadowy and erroneous ideas . . . Future generations . . . will laugh at the cumbrous and illogical efforts their forefathers made to restrict the use of the automobile . . . .”
Scott-Montagu might just as well have been describing red flag laws of today.
Rob Natelson served as a law professor for 25 years, and is nationally known as a constitutional scholar. He is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver, and author of The Original Constitution: What It Actually Said and Meant (3rd ed. 2014). A version of this article first appeared in The Daily Caller.