Political coalitions in a two-party system are strange things. I have always been fascinated by the fact that the side of the political spectrum that claims to be concerned about too much concentrated government power is the same one that tolerates little or no skepticism about police or military power exercised by executive agencies. Or that the party of “my body, my choice” is always so desperate to bureaucratize and centrally control the delivery (and necessarily, the decision-making) of medical care. 

In the last few years, we’ve seen a three-way collision taking place in Nevada (and around the country) between gun control activists, crime victim advocates (who increasingly invoke gender identity politics) and civil libertarians. When you have a far-left attorney general elected on a criminal justice reform platform complaining about the Supreme Court expanding due process rights to those accused of serious crimes (as Aaron Ford did when the Anderson v. Eighth Judicial District Court decision mandated jury trials for domestic battery cases last September), you know things are getting pretty fractured. 

Such mental gymnastics by politicians are nothing new, of course, but the more tribal our politics get, the more brazen the hypocrisy gets on all sides. Who needs a coherent set of guiding principles when you’ve got a voting base to pander to?

This dynamic will play itself out directly, as a lawsuit aimed at Nevada’s new “red flag law” wends its way through the courts. The law, AB 291, was passed at the 11^th hour in the Legislature after all rules of good-faith lawmaking had been suspended and the grossest part of the sausage-making takes place. It authorizes family members and significant others to petition a court without notice to a gun owner to have those guns taken away if they are engaging in “high risk” behavior, and there is evidence to suggest they’re going to hurt themselves or others. 

At first blush, it sounds like a reasonable thing, even to those of us who own guns. Crime is a mental health issue, after all. But as always, the devil is in the details. The new law tried to keep itself contained in some sort of boundaries, but in my experience, judges almost always will err on the side of granting a restraining order, and this would be no different.

While some of the rhetoric in the lawsuit is colorfully over-the-top, even to a weapon-ownership advocate such as myself, it cannot be denied that AB 291 would abridge a fundamental right protected by our state and federal constitutions, and would do so with some pretty minimal due process protections. This is the strange marriage of the NRA and ACLU types (at least before either of those organizations were as blindly partisan as they are now). 

The first question for everyone, though, should be whether AB 291 is actually likely to solve any problems. This is part of the problem with gun control measures of any kind – it is almost impossible to point to any given crime and say definitively (or usually, even with a straight face), “If this law had been on the books before, this crime would not have occurred.” I would suggest that if a person is intent on committing mass murder, this law would be less of a deterrent and more of a death trap for police tasked with doing the weapons confiscation. Like most such measures, it would primarily affect those already inclined to follow the rules, and would hardly touch those who are not. 

In my mind, the party wishing to abridge any fundamental right, however slightly, has a burden to prove that such an imposition is absolutely necessary and will actually work to solve the problem complained about. And I don’t think AB 291 meets that burden.

The second question is whether it’s worth it, anyhow. There will always be those who say, “If we save just one life, it will be worth it,” but those people are wrong. Public safety has been the excuse for all manner of government abuse throughout human existence, and those of us who have worn the uniforms of our nation have been willing to sail/fly/march into harm’s way to protect those civil liberties. We always, always must look for the balance between liberty and safety, erring on the side of liberty. 

Because of AB 291, how many people will lose their guns needlessly (even if temporarily), or be dragged through a time-wasting and humiliating court process, where other methods of intervention would have been more appropriate and effective? Will there be any appreciable decrease in the crime rate? How many police officers will be put at risk by being ordered to go take a gun away from someone who now (suicidally or maliciously) intends to use that weapon? What is the cost-benefit here?

The lawsuit points to the aforementioned Anderson case, and essentially suggests that if a jury is required before one can permanently be banned from owning guns, then similar due process must be observed before a temporary ban. Unfortunately, this isn’t the law. For example, you’re certainly entitled to a jury trial before being convicted of a felony, but those merely accused of felonies are routinely kept locked up for months or even years prior to their actual trials. While that situation is often outrageous (although just as often a good thing), it is not illegal for the government to do.

But what is certain is that Anderson told us that our Supreme Court takes gun rights very, very seriously (as it should). If justices do the balancing analysis they ought to do when this lawsuit inevitably reaches them, I wouldn’t put a whole lot of money on the longevity of the red flags. 

The real question will be where the politicians fall when the “victim’s rights” organizations, many of which focus on the identity politics of gender by equating victim’s rights with women almost exclusively, start weighing in. All of a sudden, left-wingers who don’t want to protect business owners from homeless encampments forming on their properties will become sober, law ‘n’ order types. Conservatives who would happily tell you that a single bullet is a lot cheaper than all those death penalty appeals will put on their powdered wigs and earnestly warn us against the evisceration of the Bill of Rights. And feminists will be out in force demanding that society understand how fragile women are, such that they need to be saved from Futurecrime. 

What a crazy time we live in. Let’s hope that if anything else comes from this lawsuit, it’s that politicians of all stripes will be a little embarrassed by their hypocrisy, and will strive to think things through better next time to find balance instead of increasingly irreconcilable tribal “victories.”

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected].