Statement on MCDV and Red Flag Laws

There has been a lot of discussion in recent months about passing so-called “red flag” laws or misdemeanor crime of domestic violence (“MCDV”) laws in Georgia. This article will examine the benefits or lack thereof of both.

MCDV Laws

Congress passed a MCDV law in 1996, making it generally illegal for anyone to possess a firearm or ammunition who had been convicted of a MCDV. Exactly what crimes constitute MCDVs and the extent of the ban are beyond the scope of this article, which focuses on passing state-level laws in Georgia. We will begin, however, with some of the flaws in the federal law.

The general public has a long-standing notion that misdemeanors are relatively minor crimes and felonies are relatively serious. Conviction of a misdemeanor generally has short-lived ramifications and after the sentence is served there is little impact on the person’s life. Felony convictions, on the other hand, are understood to have long-term impacts on life even after the (relatively longer) sentence is served. The federal MCDV law thus has the ironic provision that a person is too dangerous to possess a firearm but not too dangerous to be part of our free society.

It comes as a surprise to many, therefore, to learn that a MCDV conviction can result in permanent loss of a fundamental constitutional right, the right to keep and bear arms (“RKBA”). It is even more of a shock to learn that the battery conviction in 1995, before the MCDV law was even passed, has that result. Fundamental notions of fairness also lead a person to believe that a change in charge from battery – domestic violence to simple battery would remove the possible RKBA loss. That belief is incorrect. Under the federal MCDV law, it does not matter what the state calls the crime. If it meets the federal MCDV definition, it counts as a MCDV whether the state calls it domestic violence or jaywalking.

Another surprise to many is that, despite the word “violence” in the name, no violence is actually necessary. The Supreme Court of the United States has ruled that it is sufficient if there is “unwanted touching,” the common law definition of battery. Theoretically, a hand on a shoulder, when unwanted, is sufficient to convict for a MCDV.

The RKBA ban for a MCDV violation is permanent (i.e., for life). There is a provision in the MCDV law to remove the ban, but it requires some odd participation by the state of conviction. First, the state has to have in place some loss of a civil right as a result of the MCDV. The civil rights that can be lost generally are the right to sit on a jury, to vote, to hold public office, and RKBA. In Georgia, no civil rights are lost as a result of a MCDV conviction (Georgia following the majority of states in believing that misdemeanors should not result in loss of civil rights).

If, for example, Georgia law contained a provision that a person loses the right to hold public office upon conviction of a MCDV, then also contained a provision for restoration of the right, the federal RKBA would also be restored upon such state right restoration. To date, no Georgia legislator has proposed that he give up his right to hold public office at the same time you lose your RKBA.

This brings us to the potential enactment of a state-level MCDV law in Georgia. Such laws have been proposed for a couple sessions now, by both Democrats and Republicans. Rep. (now Sen.) Brian Strickland (R. – McDonough) and Sen. Jen Jordan (D. – Atlanta) are two current legislators who have introduced such bills. No bills have been passed by either house of the legislature. There are several reasons why they are a bad idea.

First, MCDV bills serve no purpose. There is not a single legitimate study showing that domestic violence improved in the 20-plus years since the federal MCDV bill was passed. If the bills do not do anything to reduce domestic violence, that begs the question, what is the purpose of the bills? What they really do is just deprive people of fundamental constitutional rights with no legitimate goal achieved. They are feel-good measures that make their sponsors look like the sponsors are trying to do something to curb domestic violence.

Second, state-level MCDV bills mostly mirror the federal law. That is, they do nothing to change the landscape, while chewing up limited legislative resources in the process.

Third, it is questionable whether a state-level MCDV bill would pass muster under Georgia’s RKBA, which is not co-extensive with the federal RKBA.

In reality, firearm homicides are not significant public safety issues. More Georgians die every year by suicide, auto accidents, and medical malpractice than by firearm homicides. If no single legislator thinks domestic violence is serious enough to risk his or her own right to hold public office, it is not serious enough to take away the public’s primary means of self-defense.

Red Flag Laws

Red flag laws have been passed in 17 states and the District of Columbia. They go by different names, but the basic premise is that a person’s family members or the police may petition a court to seize the person’s firearms on the grounds that the person is, at least temporarily, a danger.

Note the similarity in illogic with MCDV laws. A person is dangerous. Very dangerous. So dangerous that he cannot be trusted with firearms to the point that society should deprive him of his fundamental constitutional right to protect himself. So dangerous that his life is worth less than everyone else in the general public who retains the RKBA. But, not so dangerous that he should be confined.

Somehow, the logic goes, he is too dangerous to have a firearm, but he can be trusted with a motor vehicle (responsible for several times more homicides per year than firearms). He also can be trusted with kitchen knives, swords, archery equipment, fireworks, gunpowder, gasoline, kerosene, diesel fuel, ammonium nitrate, fuel oil, and a whole host of other substances and devices that are inherently dangerous or easily adapted to cause destruction of property and bodily injury.

Aside from the abject uselessness of such laws, they are unfair and unconstitutional. They result in the seizure of personal property without compensation. The person generally gets little notice of the proceeding and little opportunity to present a defense. There generally is no discovery, so that the person does not know what evidence will be brought against him. There generally is no right to a jury trial. There is, in sum, generally no right to due process.

The sanction of seizure of person property is harsh, and unheard of in any other non-criminal context. When a person is determined to be unfit to operate a motor vehicle, does the sheriff go seize all his cars? Of course not, and no one would think for a moment that such a result is just. The person can, after all, just be told he may not drive. He is never told he may not possess a motor vehicle. He is free to keep his car and get his friends, neighbors, or relatives to drive him where he needs to go in his own car. If the same person is found unfit to shoot a gun (what kind of evidence would be needed for this conclusion?), why must his guns be seized? Cannot he get his same friends, neighbors, or relatives to go out with him or stay in with him, protecting him with his own guns?’

If, however, a person is validly determined to be too dangerous to possess firearms at all (but not so dangerous as to make him give up paring vegetables), there simply is no basis for the wholesale seizure of his guns. The Supreme Court of the United States has ruled that a person who forfeits his RKBA by, for example, conviction of a felony, is entitled nonetheless to the economic value of his property. Outright seizure of his firearms is unconstitutional if it is not part of his sentence. He retains the right to sell or dispose of his firearms as he sees fit, provided it is done in a fashion where he is not able to possess or re-possess them.

There is no logical reason to believe that victims of red flag laws should not have the same right, and that is if the due process and Second Amendment violations can be worked out.

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