On Monday February 3rd, Representative Stephen Handy, known for pushing for an Extreme Risk Protection Order (Red Flag) for a third year in a row, claimed to be tabling his proposal this year due to lack of support in the House to proceed.
After an hour of heated discussion about the Legislature’s failed attempt at tax reform over the interim session, constituents pressed the topic of his ERPO bill, HB229 “Extreme Risk Protection Order.” Rep. Handy, citing the aforementioned lack of support, said he would not be proceeding with the bill this year.
Accusations of an Unwillingness to Act
Representative Handy is clearly passionate about the passage and implementation of an ERPO, and had choice words for his constituency that refused to support the bill. He accuses them of disinterest in public safety and preventing other kinds of tragedy, as well as suggesting detractors have a fundamental misunderstanding of the constitutionality of the measures he looks to enact–suggesting that because the courts haven’t struck them down they are subsequently constitutional.
“The Second Amendment is not a suicide pact.”Representative Stephen Handy (R-16 Layton), February 3rd 2020, on his Red Flag Bill
Representative Handy also went on to suggest that the “Second Amendment is not a suicide pact,” and that therefore it was open to restriction of this nature.
A Constitutionality Crisis
Rep. Handy was eager to suggest that, because it has not been challenged in a Court, it’s constitutional. This fundamentally misrepresents the purpose of the court; the court does not determine what is constitutional; it just finds abuses that already exist in law. An absence of a court case is not a de-facto admission of constitutional legality, and easily articulated with many other cases. For example, certainly nobody would suggest that discrimination against same-sex marriage was constitutional under the Equal Protection clause until Obergefell v. Hodges.
There are millions of statutes on law books across the country, at every level of government. The courts rule on only a tiny fraction of those; it’s foolhardy to suggest that so few abuses exist, that only those challenged in court are genuinely unconstitutional.
Sen. Weiler and Rep. Briscoe Introduce Their Own ERPOs
In a surprise announcement on Feb 13th, Senator Weiler (R, SD-23) and Representative Briscoe (D-25) both announced pending legislation that would effectively be their own versions of a “red flag” law.
After rumors of a closed-door headcount, both Sen. Weiler and Rep. Briscoe announced they would not be proceeding with their bills either. Neither bill made it out of drafting and into the public’s hands for review, so we’re still unsure precisely how these would differ, if at all, from Rep. Handy’s proposals.
A Startling Trend and Warning
Despite Utahns being able to breathe easy for one more General Session, it’s clear that the intent to create an ERPO in Utah is receiving significant attention; Moms Demand Action, Everytown for Gun Safety, and March for our Lives all support red flag laws, and are becoming increasingly active in the Beehive State. Worst yet, 2/3’s of the ERPOs we’ve seen in Utah have been Republican bills.
If Utahns are to forever beat back the threat of an ERPO, more than just defeating them in committees needs to be done; the understanding of what red flag laws are and why they deserve to be relegated to the scrap heap of bad ideas needs to be proliferated far and wide. Too often they appear reasonable to the average onlooker, and that appearance of harmlessness is precisely what makes them so dangerous.