Thoughts On SB5 – ‘The Red Flag Bill’


Los Alamos

The Extreme Risk Firearm Protection Order Act (SB5- AKA Red Flag Bill) reasonably balances the right to bear arms with the police powers of the state to create regulations to help counter an epidemic of gun violence perpetrated by unstable individuals.

In 2008 the U.S. Supreme Court (case named Heller) found that the Second Amendment to the U.S. Constitution protects the right of an individual to use weapons similar to those used by a “citizens’ militia,” that is, those in “common use for lawful purposes” in the colonial and revolutionary era, for “traditionally lawful purposes such as self-defense within the home.”  The rights of New Mexico gun owners are also protected by Article II Section 6 of the New Mexico Constitution, which is consistent with Heller: protecting “the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.”

Both Federal and New Mexico law recognize that individual rights are not absolute and are subject to reasonable regulation under the police powers of the state.  The rulings cited above explicitly leave in place long-standing prohibitions such as possession of firearms by the mentally ill and felons, and the carrying of dangerous and unusual weapons.  For example, New Mexico’s statute prohibiting carrying switchblade knives was found a reasonable limitation on the right to bear arms, as was a conviction for negligent use of a deadly weapon because the user was intoxicated.  Federal law has long regulated automatic weapons, silencers, possession of firearms by felons and carrying weapons in federal buildings.

Police powers were reserved to the states by the U.S. Constitution.  These powers may, and often do, override individual rights in the name of protecting the public health, safety, morals, and welfare.  For example, New Mexico children are frequently removed from family homes by police or medical personnel, without a warrant, after brief investigations and a finding by the investigator of “reasonable grounds” for removal, in spite of the constitutional right to parent a child.  The constitutional right to travel is limited in many ways, from driver’s license requirements to DWI roadblocks.  Free speech, arguably the most important right, is constrained by libel and fraud laws and restrictions on hate speech and incitement of a riot.  Sex offenders are monitored by law enforcement and their movements restricted long past the completion of their sentences based on the notion that they are more likely than most to commit sex offenses.

The most obvious way to limit gun violence is to eliminate the guns.  This is not only constitutionally unacceptable but also in the US practically impossible.  But the examples I mentioned all provide precedent for the legislature to find that the public health and safety are at risk when persons who have perpetrated or threatened acts of violence possess guns. Thus legislators are legitimately allowed, in fact are duty-bound, to take action to remove those guns, while respecting the right to due process.  As most laws do, this one does in fact limit to some extent an individual constitutional right, but it is not by that fact alone unconstitutional: the test is “reasonableness.” To my mind it is eminently reasonable to protect innocent potential victims from death or injury by limiting the gun rights of violent individuals, while leaving intact the rights of law-abiding citizens.