Sanctuary from Nothing

Spectator

By Stephen Tuttle | Feb. 15, 2020

Kalkaska County is now a Second Amendment sanctuary county. Gun owners there will now be safe from an intrusive government and so-called red flag laws, universal background checks, and prohibitions against semi-automatic long guns and high-capacity magazines. 
 
As a bonus, their declaration says their county prosecutor has the discretion to simply ignore any such unconstitutional laws. 
 
Except none of that exists. Michigan has no red flag law, there are no universal background checks, and no prohibition against so-called assault rifles. So Kalkaska County Commissioners have taken a bold stand against ... nothing. 
 
What has made Kalkaska gun-rights advocates so paranoid they believe a declaration protecting them from rules that don't exist is required? 
 
Red flag laws, also known as extreme risk protection orders (ERPO), allow police, or in some states, family members or other members of the public, to petition a state court to temporarily remove firearms from someone that court deems a danger to themselves or others. Currently, 17 states and the District of Colombia have such laws, though each is slightly different. 
 
The weapons can be removed briefly or for up to a year. Thousands of such orders have already been issued in states with the laws. They popped up in response to our epidemic of mass shootings, a problem those orders don't actually resolve. It is far more likely to be used when someone is threatening suicide — nearly 60 percent of gun deaths are suicides — or in domestic violence situations. The idea is to remove weapons while someone gets the counseling they need. 
 
According APM Research, about 77 percent of the country support or strongly support such laws. Federal district courts in both Indiana and Connecticut have ruled the laws constitutional though no case has yet made it to the appellate level, much less the Supreme Court. 
 
Universal background checks try to weed out potential gun owners with histories of behavioral and mental health issues, or most felony convictions. According to both the Gallop Poll and Pew Research, support for such background checks hovers at or near 90 percent.
 
Gun dealers already have to submit gun ownership applications to the FBI for background checks, but Congress, always fearful of the National Rifle Association, has failed to act on several attempts to expand that to include gun shows and individual sales.   
 
We once had a ban on so-called assault weapons, those long guns cosmetically designed to look like military weapons. From 1994 through 2004, the sale of both the weapons and high-capacity magazines were outlawed, bans never overturned by the courts. The George W. Bush administration and Congress allowed the law to expire. 
 
Though the numbers fluctuate depending on what weapon was used in the latest mass shooting, about 60 percent of American support such a ban. Both New York and Connecticut have passed statewide bans, and federal appellate courts have upheld both. 
 
In the case District of Colombia v. Heller, the U.S. Supreme Court ruled that private gun ownership, absent militia membership, was protected by the Second Amendment. But they left the door wide open for Congress or individual states to create restrictions on most everything other than an outright ban. 
 
Since then, our top court has refused to even hear any case involving anything but handguns, allowing lower court rulings that uphold restrictions to stand. There is no constitutional prohibition, at least so far, against restricting the kinds of weapons, magazines, or ammunition individuals can use. 
 
That's the real point: The federal courts get to decide what is constitutional and what is not. County commissions aren't really in a position to make such a decision, nor are individuals who are positive they get to decide, a position ironically far outside the actual Constitution. 
 
We give law enforcement significant discretion to do their jobs — maybe we'll get a ticket, or maybe we'll just get a warning. Maybe they'll pull over that car that slowly rolled through the stop sign, or maybe they'll let it go.
 
Likewise, prosecutors have significant discretion as to whether or not you'll be charged with a crime and what crime that might be. Plea bargains, also part of prosecutorial discretion, are common practice, lest the entire judicial system becomes impossibly unwieldy. 
 
But neither law enforcement nor prosecutors nor individual citizens ultimately get to decide what's constitutional. We leave that decision to the judiciary and, ultimately, the Supreme Court. If Michigan, or any other state, passes red flag, background check, or assault weapon laws, and the Supreme Court rules them to be constitutional, then they are, and we rightfully expect those laws to be enforced. (Yes, the same holds true for immigration laws.)
 
If those who are sworn to uphold the law, or take an oath to defend the Constitution, find themselves unable to do so, they should resign. Self-proclaimed constitutional experts don't get to overrule our federal courts.