The Virginia Democrats’ “red flag” proposal starts with a premise that sounds reasonable. Many shooters exhibit warning signs of potentially violent behavior well before acting out, so there should be a way of proactively preventing them from getting their hands on lethal weapons. But taking away somebody’s constitutional right is no small matter. As designed, this law is an affront to due process.
It would allow government officials, such as law enforcement officers, to obtain permission from judges to confiscate the guns of an individual somehow suspected to be dangerous. The evidentiary standard in such cases is the lowest possible in court — “preponderance of the evidence” or 51% certainty.
The use of preemptive policing is inherently troubling, even where it is necessary or justifiable. After all, we are talking about a law that would deprive people of constitutional rights. Surely, we could have an evidentiary standard tight enough to prevent flagrant harassment of gun owners by people who personally dislike them — or even by neighbors who don’t want to live near a gun owner. Virginia’s legislators don’t seem to have thought this through very carefully.