Two Potential Strikes Against the Second Amendment

August 13, 2019 Updated: August 13, 2019


The recent tragedies in El Paso, Texas, and Dayton, Ohio, have once again brought the Second Amendment and gun laws into the spotlight.

It’s clear that something must be done to try to prevent, to the extent possible, such tragedies from occurring.

Republicans and Democrats, as expected, have different opinions about how to best accomplish this. While they continue to debate how to best reduce (and hopefully eliminate) gun violence, the Second Amendment faces two potential “strikes” against it. The first is President Donald Trump’s proposed “red flag” laws, while the second is a case that the Supreme Court has been asked to consider.

Red Flag Laws

After the recent and horrific shootings in El Paso and Dayton, Trump indicated that he would consider red flag laws with regard to firearms (some states also have such laws).

As reported by The New York Times: Red flag laws “are state laws that authorize courts to issue a special type of protection order, allowing the police to temporarily confiscate firearms from people who are deemed by a judge to be a danger to themselves or to others.

“Often, the request for the order will come from relatives or friends concerned about a loved one who owns one or more guns and has expressed suicidal thoughts or discussed shooting people. The authorities may also request an order.”

While the purpose behind such laws should be supported by everyone, the obvious and glaring problem arises from its implementation and enforcement. More particularly, red flag laws can be abused, thereby curtailing a person’s Second Amendment rights. For example, as set forth in The Washington Times, some red flag proposals “allow for individuals to report family members deemed mentally unfit, and for local authorities to hold the power to assess and decide—and confiscate.”

Who determines whether someone is mentally unfit to own a firearm? What happens if a person can’t afford to defend a bogus allegation? These laws often force those who are accused to defend themselves in court before the facts are even heard (i.e., see Florida Statute 790.401–Risk Protection Orders).

It goes without saying that each and every person should support the underlying goal behind such laws, which is to prevent potentially dangerous people from buying or owning firearms. This is a fantastic idea! However, given the possibility of abuse, red flag laws raise some serious concerns relative to the Second Amendment, which is why some Republicans have voiced misgivings about such laws in their current (or proposed) forms.

In addition to the potential Second Amendment concerns posed by red flag laws, the Supreme Court has also been asked to consider a case involving gun-maker Remington, the results of which could also indirectly affect the Second Amendment.

Remington Case

Remington Arms Co. was sued by several families of the Sandy Hook massacre over the way the company marketed the weapon that was used in the shooting. Remington appealed the Connecticut Supreme Court’s decision, arguing, in part, that the lawsuit was improper in light of a 2005 law—the Protection of Lawful Commerce in Arms Act—which immunizes gun manufacturers and dealers “from the vast majority of lawsuits that could be brought as a result of crimes committed with their firearms,” according to Politico.

However, the act contains six exceptions, one of which “permits civil actions alleging that ‘a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or marketing of the [firearm], and the violation was a proximate cause of the harm for which relief is sought … .’ 15 U.S.C. Section 7903(5) (A) (iii) (2012).”

The Connecticut Supreme Court ruled against Remington and ruled that the estates of the people who were killed could sue Remington because it violated a state law by advertising “its product in a way that could promote mass shootings,” according to Politico. For example, it promoted the use of the XM15-E2S for offensive, assaultive purposes—specifically, for “waging war and killing human beings”; it advertised the AR-15 as a weapon that allows a single individual to force his multiple opponents to “bow down.”

Remington has asked the U.S. Supreme Court to read the act more broadly and to reverse the Connecticut Supreme Court’s ruling. If the Supreme Court agrees to hear this case, and if the court agrees with the Connecticut Supreme Court, there will likely be a slew of lawsuits filed against gun manufacturers. If this happens, gun manufacturers will also have to spend a great deal of money defending themselves in various legal battles. Given this enormous financial strain and the potential legal exposure, gun manufacturers could very well stop producing certain firearms, which will, ultimately, impact consumers’ Second Amendment rights to purchase and use firearms for lawful purposes.

When viewed together, the red flag laws and the potential impact of the Remington case could significantly affect the rights that people enjoy under the Second Amendment. While everyone wants to prevent tragedies from occurring, any proposed legislation or law should not directly, indirectly, or arbitrarily hinder or eliminate someone’s Second Amendment rights.

Obviously, some type of gun reform is necessary. This is abundantly clear. However, it must be carefully crafted so as protect the rights that are afforded to the people under the Constitution.

Elad Hakim is a writer, commentator, and attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker, and other online publications.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.