A New York appellate court upheld the state's Extreme Risk Protection Order law this week, ruling that depriving individuals from possessing firearms is perfectly fine, so long as a judge finds there's probable cause to believe the subject of a "red flag" petition is "is likely to engage in conduct that would result in serious harm to himself, herself or others".
The Second Department of the Appellate Division got ahold of this case after a man who was red-flagged in January of last year filed suit challenging the constitutionality of the statute. Orange County Judge Craig Brown declined to grant a final order against Corey Monroe, and has rejected virtually every ERPO petition that's come before him since then, but New York Attorney General Letitia James appealed Brown's decision to the Second Department.
On Wednesday, Associate Justice Betsy Barros and three of her colleagues on the appeals court sided with James, though their reasoning will leave Second Amendment supporters confounded.
Monroe and his attorneys raised several challenges to the ERPO statute, including a lack of due process and vagueness concerns, but we'll focus solely on what the appellate court had to say about the supposed lack of conflict between the right to keep and bear arms and New York's "red flag" law.
The United States Court of Appeals for the Second Circuit recently ruled that “[a] reasoned denial of a carry license to a person who, if armed, would pose a danger to themselves, others, or to the public is consistent with the well-recognized historical tradition of forbidding dangerous individuals from possessing weapons”, since “[t]here is widespread agreement among both courts of appeals and scholars that restrictions forbidding dangerous individuals from carrying guns comport with ‘this Nation’s historical tradition of firearm regulation”. CPLR article 63-A imposes a restriction of an individual’s right to own or possess a firearm when there is probable cause to believe that he or she is likely to engage in conduct that would result in serious harm to himself, herself, or others, which is thereafter supported by clear and convincing evidence at a hearing. This regulation is consistent with the Nation’s historical tradition of firearm regulation in keeping dangerous individuals from carrying guns and, therefore, is presumptively lawful.
That's it. That's the entire historical inquiry that the appeals court engaged in: the Second Circuit says it's okay to deny someone a concealed carry license based on subjective standards of "good moral character", therefore it must be okay to prohibit someone from possessing a firearm so long as a judge finds there's probable cause to believe that someone's a danger to themselves or others.
First off, let's note the obvious flaw in the Second Circuit's logic in Antonyuk: it's entirely possible that under New York law someone can be deemed responsible enough to receive a license to keep a gun in their home, but too dangerous to lawfully bear arms in public. That alone is indicative of the subjective nature of New York's carry laws, even after the Supreme Court struck down the state's "may issue" regime in Bruen.
The New York appellate court stretches that already thin rationale to an absurd conclusion. The probable cause and "clear and convincing evidence" is a lower standard than "beyond a reasonable doubt", which is what's required to convict someone of a crime. Yet according to Barros and her colleagues, it doesn't matter how low the bar is. So long as a judge determines someone shouldn't have a gun, they don't get to have a gun.
You don't have to be charged with a crime (though in this case Corey Monroe had been charged with third-degree menacing after allegedly pointing a gun at a neighbor during a dispute), and you certainly don't have to be convicted of a crime to have your Second Amendment rights stripped from you "temporarily". You don't even need to be examined by a mental health professional in order for the judge to issue his or her supposedly expert determination about your dangerousness.
It doesn't take a tinfoil hat-wearing conspiracy theorist to see a problem here. Under that lower and subjective standard, an activist judge could decide that virtually any gun owner is too dangerous to exercise their Second Amendment rights, even while they would remain free to pick up a knife, a tire iron, or a baseball bat to threaten their neighbors. Maybe the judge believes that Trump voters are dangerous to be allowed to exercise their Second Amendment rights, or anyone who believes that the Second Amendment is about preventing tyranny along with protecting the ability to bear arms in self-defense. Under the appellate court's rationale, so long as the judge concludes that it's more likely than not that someone poses a risk to themselves or others, for whatever reason, their Second Amendment rights can be stripped from them.
That does not comport with the text, history, and tradition of our Second Amendment rights. As the Second Amendment Foundation recently argued in a challenge to Maryland's "red flag law" (which uses an even lower standard of proof than New York's ERPO statute), "there is no historical tradition of wholesale firearms bans for possible or theoretical future 'dangerous' conduct absent concrete violation of law."
In Monroe's case, there was an alleged violation of law, but it was only an allegation, not a concrete violation when his guns were seized.
"Red flag" laws don't do anything to address the actual dangerousness of a person. They only impact that person's ability to lawfully possess a gun, while leaving the dangerous person to their own devices. Last year, for instance, a New York judge granted a "red flag" petition against a man who had threatened to kill family members with an axe. Now he's unable to legally acquire a firearm, but there's nothing stopping him from going into a sporting goods store and walking out with a hatchet or going online and ordering a Bowie knife from Amazon.
Is the issue this guy's ability to purchase a firearm, or his ability to harm his family?
I realize the courts aren't considering the lack of common sense behind Extreme Risk Protection Orders, but these laws are just as problematic from a constitutional standpoint. Monroe's attorney says he's talking with his client about an appeal, and I hope he decides to move forward. Meanwhile, SAF has asked a federal judge in Maryland to grant a temporary injunction against the state's "red flag" statute, and we'll be watching to see when U.S. District Judge Ellen Lipton Hollander schedules a hearing on SAF's request.
