Delegate Rob Bell (R-58) serves as Vice-Chair of the non-partisan Virginia State Crime Commission. I asked him recently about how the Commission’s deliberations were progressing following the two days of highly publicized public testimony in August. Rob said the Commission was “keeping our cards close to our vest.” They do not want a lot of cherry-picked information floating about that could bias public perception of their final report. I respect that.
Two of the many proposals before the Commission (published in other sources) are worth particular note. House Majority Leader Todd Gilbert (R-15) has already filed legislation to create violence-reduction initiatives in Virginia that have proven successful in Boston. Youth homicide numbers in Boston dropped more than 60 percent after the first two years of the program. The program targets areas with high gang violence. Gangs are put on notice that unless the violence stops “business as usual” stops. Police presence would be high, no violation of law would be ignored no matter how minor, and gangs would find themselves under constant watch. Additionally, a social services component engages with the community and provides alternatives to gang culture.
The programs would be implemented where the violence is worst, typically in big cities. Richmond had the most gun-related murders in 2018 with almost twice as many (49) as number two Norfolk (26) and number three Newport News (20) – although Petersburg had the most murders per capita. The program would focus efforts on those who commit crimes rather than on those who want to be able to defend themselves from crime.
Virginia already has a number of small-scale, grant financed, violence reduction programs that flow through a number of agencies. The money is used in different ways depending on where in the state it is used. These programs have shown promise. With the lessons and successes of the Boston program as a guide, Delegate Gilbert’s plan could be one of the most effective recommendations to come out of the Crime Commission when they make their report to the General Assembly in November.
Unfortunately, a number of ineffective and blatantly unconstitutional measures have also been proposed to the Crime Commission. One of the more egregious of these is the so-called “Red-Flag Law.” Proponents disguise it by calling it a gun-violence prevention law, but it is really a gun-confiscation law. Red-flag laws allow any individual – who is not identified to the victim – to tell police that an individual (the victim of the law) is dangerous and should not have access to guns. The police then go to that victim’s home and take away all the victim’s guns.
These laws violate the Constitution on at least four points. First, we have a Second Amendment right to keep and bear arms. Nowhere in that document does it add “unless someone suspects you might, at some unnamed point in the future, actually use your guns.”
Red-flag laws violate our Fourth Amendment protections against unreasonable search and seizures. The amendment reads: “The right of the people to be secure in their persons houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” Red-flag laws in effect reduce “probable cause” to “possible cause,” and they do so without properly amending the Constitution. That means it’s unconstitutional. The state is supposed to punish those who do break the law, not those who might do so.
Red-flag laws violate our Fifth Amendment right to due process, to just compensation, and against self-incrimination. The victim is not allowed to defend himself before his property is taken, and then he has to prove himself innocent rather than require the state to prove him guilty.
Red-flag laws violate our Sixth Amendment right to confront accusers, cross-examine witnesses, and have a public defender. Not only does the victim not get to confront his accusers, he isn’t even allowed to know who made the charges against him.
If the target of a red-flag accusation is really dangerous, then take the target into custody, not the guns. If someone is going to be violent, they can do as much damage with a couple of big knives or a truck driven into a crowd on a sidewalk. You can make a case for mental health reform to deal with individuals, but confiscating those individuals’ guns under a Red-Flag law is just plain unconstitutional. Let us pray that the State Crime Commission recommends sensible and constitutional legislation to the General Assembly, not gun confiscation laws in disguise.
Steve “Doc” Troxel, Ph.D.