One complaint about the potential injustice of red-flag laws is that they are too “predictive.” That is to say: How do we really know that a person presents such a peril that the denial of his Second Amendment rights can be justified in the absence of criminal or other disqualifying conduct?
To be sure, we’re only human and our powers of prognostication are highly fallible. It is certainly possible that a person could be unjustly deprived of firearms rights, just as a person can be unjustly convicted, or falsely arrested. Nevertheless, the fact that mistakes and abuses are inevitable does not mean they are routine — we know they are not. And the fact that we cannot predict the future with certainty does not render us unable to address its plain-as-day possibilities responsibly. Indeed, we are obliged to do so.
To take a fitting example, the Constitution’s Eighth Amendment guarantees that, when a person is accused of a crime, “[e]xcessive bail shall not be required.” This constitutional safeguard is commonly thought of as a “right to bail.” But the right is importantly qualified. A judge may deny bail on a showing that the accused is a flight risk. We certainly do not know ahead of time whether the accused, if granted bail, will abscond. Yet judges routinely make this determination, scrutinizing the accused’s roots in the community, ties to other jurisdiction, and means and motive to flee. It is not an exact science, but we do the best we can. We make sure the accused is vested with due process rights to contest the prosecution’s claims, and the system works well. Not perfectly, but well. There is no perfect in this vale of tears.