No to ERPO

By Jeff Knox

(June 6, 2018) Why are NRA, President Trump, Republican members of Congress, and commentators like Ben Shapiro advocating in favor of so-called Extreme Risk Protection Orders, or ERPO’s?
The idea behind ERPO’s is that if someone is acting crazy, a family member or police officer can file for one of these orders, and the dangerous person’s guns can be taken away from them. That may appear on the surface to be reasonable and rational, and it’s understandable why a person who hasn’t really studied the issue or given it serious thought, would be inclined to support it, once you get beyond the warm and fuzzy cover, you find a whole bunch of cold and prickly.
The first problem with ERPO’s is that they single out gun ownership. No one likes to have a target drawn on their forehead, and that’s exactly what ERPO’s do to gun owners. They also reinforce the notion that it’s the guns that are the problem.
Let’s get something straight: Guns are not the problem. Americans own hundreds of millions of guns, and well over 99% of those guns are never used to harm anyone. Crime, violence, and suicide are not gun problems, they are people problems. Guns are merely tools. And while they are tools that are readily usable and effective for crime, violence, and suicide, they do not cause that behavior, and their removal rarely prevents that behavior or mitigates the results.
The second problem with ERPO’s is that they generally skip right over due process protections.
This is where NRA draws their line. They oppose ERPO laws that don’t provide at least some form of due process. Unfortunately they go on to set the bar for what they consider to be acceptable due process, very low, leaving gun owners at undue risk, and holding the bag for costly and time-consuming remedies.
The third problem with ERPO’s relates directly back to the first two. There is a much better alternative currently available to family members and law enforcement in every state. If a person is behaving in a mentally unstable manner which poses a threat to themselves or others, that person can be taken into custody for a temporary evaluation period, and if needed, committed indefinitely for psychiatric care. This option is seen as drastic, and all concerned are reticent to employ it in anything other than the most dire of circumstances. It is in fact this reticence which keeps these laws from being widely abused, because the laws themselves are generally written very broadly with little consideration for due process. But because judges take the issue of incarcerating a person against their will, very seriously, they are generally very cautious about employing this drastic measure.
The same cannot be said about judges attitudes towards the right to arms. The Second Amendment has never been accorded the same respect and consideration by the courts, that are given to other fundamental rights. Most judges in this country won’t even blink at the idea of removing guns and suspending or completely abrogating a persons gun rights. They put no more weight on this than on suspending a person’s drivers license.
Guns are being used as a scapegoat to avoid addressing the real problems with real solutions. If a person is a serious threat to himself, he needs treatment and close observation, not police demanding his firearms. If a person truly posses a serious threat to others, he needs to be isolated in a place where he can’t hurt anyone, not have his property confiscated, then left to his own devices.
It is positively irrational for anyone to think that police coming and taking away guns from a suicidal person will prevent that person from committing suicide. It is even more irrational to think that police coming and taking away guns from a dangerously insane person will prevent that person from doing harm to others.
These Extreme Risk Protection Orders do not call for the taking of car keys, gasoline, kitchen knives, chainsaws, explosive chemicals, or other dangerous items… Only guns. But the authorities in most places don’t know what guns a person might possess. If they were planning some sort of atrocity, they could easily cache some of their tools.
Granted there is a possibility that someone who might be suicidal, might not succumb to a momentary impulse to pull a trigger if the gun’s not there, and we fully support the idea of encouraging people who are depressed to stay away from easy options, and surrender their guns voluntarily. But if you have to force the removal of the person’s guns, the odds are they are pretty committed to the idea, and will find another way.
Anyone who has been through a contentious divorce or child custody battle, or has seen someone close to them go through something like that, knows that restraining orders and orders of protection are handed out by judges like breath mints. To them it seems to be a matter of “better safe than sorry,” even though these orders have no real effect on the behavior of truly dangerous people. And gun owners have already been singled out for extra oppression, simply because they are gun owners. Again, the law doesn’t take away vehicles, knives, or matches… Only guns.
At first blush, the idea of taking guns away from someone who appears to be mentally unstable and dangerous, seems like a good idea. Why would such a person have them in the first place? But when you really examine the issue, it makes no sense at all. If a person truly is mentally unstable and dangerous, why are they free on the streets? Why aren’t they someplace safe where they can receive the help they need?