Will Supremes Unleash Biden Red Flag Gun Raids?
President Joe Biden launched his first attack on the Second Amendment this week, making clear his intent to radically curtail Americans’ legal rights to own firearms. The White House boasted that Biden was nominating a “fierce” advocate of gun control, David Chipman, to be chief of the Alcohol Tobacco and Firearms (ATF) agency. Chipman, a former ATF agent, is so dedicated to banning assault weapons that he brazenly lied last year about the 1993 federal assault at Waco, claiming that the Branch Davidians shot down two National Guard helicopters that were assaulting their home. Chipman, a Phillips Exeter Academy graduate who carries a concealed weapon himself, was an ATF case agent at the 1994 trial of the Branch Davidian survivors so he had no excuse for tossing out this anti-gun fairy tale.
Perhaps the biggest peril that Biden unveiled is his push for a national “red flag” law that would entitle the police to preemptively confiscate the guns of anyone who is accused of being a threat to himself or others. Red flag laws have been notorious for trampling due process and spurring unjustified police raids that have resulted in killing innocent gun owners. It is naïve to expect fair play on gun owners’ rights when the politicians driving such policy are openly seeking pretexts to disarm as many Americans as possible. Biden’s push for a red flag law could become far more perilous to constitutional rights if the Supreme Court upholds a potentially landmark gun seizure case that could gut the Fourth Amendment’s prohibition against warrantless searches. The Court heard arguments in this case last month and a decision is expected by June.
In 2015, after an elderly couple had a heated argument, Edward Caniglia placed an unloaded revolver on the table and taunted his wife: “Why don’t you just shoot me and get me out of my misery?” His wife, Kim, was spooked and left to stay overnight in a hotel. When he didn’t answer a phone call the next morning, she called the police and asked them to check on him.
Police arrived and browbeat Edward Caniglia into getting get a psychiatric examination at a hospital. He agreed to do so only after police promised not to seize his handguns. The shrinks certified him as sane (at least by prevailing Rhode Island standards) and he returned home to learn the police had confiscated his guns. Both he and his wife requested the guns be returned. Police refused to do so until Caniglia, who had no history of violence or abusing firearms, filed a lawsuit. Caniglia also sued the city of Cranston and police officers for violating his constitutional rights.
At first glance, his case rested upon solid precedent. The Supreme Court ruled in 1980, “It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” In 1948, the Supreme Court declared that the sanctity of private homes is “too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals.” But the police and their supporters relied on a vast expansion of a 1973 Supreme Court decision that justified a warrantless “inventory search” of a rent-a-car to seek a police officer’s revolver in the trunk as part of the “community caretaking” exemption to the Fourth Amendment. A federal judge and a federal appeals court, ruling in favor of Rhode Island police, effectively concluded that a private home was “close enough for government work” to a rent-a-car to justify warrantless searches.
But what about that clarion call 1967 Supreme Court decision that declared, “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” Not a problem, according to the first amicus brief that the Biden administration filed with the Supreme Court. According to the Biden administration, the only question in the Rhode Island case was whether the actions of police officers in the case were “objectively reasonable.” Constitutional rights were effectively moot because the Cranston cops were simply dealing with “an impending safety threat through a warrantless seizure of a potentially mentally unstable person and an entry into his residence for the limited purpose of removing firearms.” For the Biden legal team, “confiscating” became “removing” as smoothly as one of Falstaff’s minions turned “stealing” into “conveying.”
On the same side of the fight, Marc DeSisto, the lawyer representing the Cranston police officers, declared, “The Fourth Amendment has only one test and that is that searches and seizures shall not be unreasonable.” DeSisto was not required to take a literacy test and perhaps was unaware of the Fourth Amendment passage about Americans’ rights to “be secure… against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” DeSisto and the Biden administration presume that warrants are unnecessary, if not irrelevant, any time government officials assert that it is “reasonable” to enter someone’s house without a warrant “to ensure public health and safety.” And who defines “reasonableness”? The same government officials who violate the Constitution. As Justice Stephen Breyer commented, “If you take a caretaker exception and read that into the word ‘reasonable,’ there’s no stopping. We don’t know how far we’ll go.”
Lawyer Shay Dvoretzky, who represented Caniglia before the Court, warned,
“Nearly every criminal violation has public safety implications, so dispensing with the warrant requirement whenever police can point to a health or safety motive would eviscerate the Fourth Amendment. Virtually any criminal situation can also be described in health or safety terms. For any situation involving drugs and alcohol, police could just say they were going into the home in order to make sure that the suspect was okay.”
As Justice Neil Gorsuch asked, “What does the government do that doesn’t involve health or safety?” Institute for Justice attorney Joshua Windham wrote, “A rule that allows police to burst into your home without a warrant whenever they feel they are acting as ‘community caretakers’ is a threat to everyone’s security.” A brief filed jointly by the American Civil Liberties Union, Cato Institute, and American Conservative Union Foundation warned that upholding the Rhode Island search could “give police free rein to enter the home without probable cause or a warrant” and would be “unwise, unmanageable, and unnecessary, and it opens the door to abusive police conduct.”
The Biden administration’s animosity to the Second Amendment has raised the stakes for the Rhode Island case. The Second Amendment Law Center, the California Rifle and Pistol Association, and Gun Owners of California warned the Supreme Court that
“the Fourth Amendment has no ‘gun’ exception… Expansion of the ‘community caretaking’ exception into the home will be used by police in jurisdictions with onerous or constitutionally-questionable firearm restrictions to turn every call to a house into a search for guns under the pretext of ‘helping’ those present.”
Anyone who doubts whether warrantless “community caretaking” could open an authoritarian Pandora’s box should read the transcript of the Supreme Court hearing. Lawyer DeSisto asserted that the caretaking doctrine would also authorize police raids to enforce mandatory COVID mask requirements if “they can see a lot of people gathered together that are not wearing masks.” Gov. Cuomo is again the bellwether here. In November, Cuomo denounced New York county sheriffs for acting like a “dictator” because they refused to forcibly enter private homes to enforce Cuomo’s mask mandate. Since the start of the Pandemic, Biden has whooped up masks as if they were a silver bullet to slap COVID-19 (regardless that tens of millions of Americans have been infected with the virus since mask compliance reached over 80 percent in public places). Biden has already mandated wearing masks in National Parks and on federal property. How much further could he go if there is another surge of Covid cases?
Justice Sandra Sotomayor commented during the hearing, “When we permit police to search and seize without some standard, we run the risk of situations like this [Rhode Island case] repeating themselves.” But many antigun activists view the case as a model, not as a glitch in the legal system. Some court watchers expect a victory for the Biden position; Reuters headlined its report on the hearing, “With the elderly in mind, U.S. Supreme Court wary of limiting police in home entries.” Defenders of the Rhode Island gun seizure insist that government officials need discretion to forcibly protect people against themselves. But consider the experience of New Yorkers under the Secure Ammunition and Firearms Enforcement (SAFE) Act, which Gov. Andrew Cuomo railroaded into law immediately after a 2012 school shooting in Connecticut. Cuomo declared: “People who have mental health issues should not have guns. They could hurt themselves, they could hurt other people.” But tens of millions of Americans visit therapists each year, and “mental health issues” is vague enough for endless political mischief.
More than 85,000 New Yorkers lost their Second Amendment rights as a result of a “mental health” exclusion clause in the SAFE Act. As columnist Jacob Sullum observed, the “law effectively gives ‘mental health professionals’ the power to disarm people, and they do not even need a judge’s approval.” New York University law professor James Jacobs observed that, “based on as little as a single short emergency room interview,” an individual “need not even be notified that his or her name has been added to a database of persons whose firearms license must be revoked and whose firearms must be surrendered.” Medical professionals and others were already legally obliged to notify police if a patient “made a credible threat” of violence but the provision in the 2013 act was far more expansive.
If the Supreme Court approves “wellness check” warrantless gun raids, the Biden administration could invoke the American Psychiatric Associations Diagnostic Statistic Manual (DSM) category 313.81, Oppositional Defiant Disorder, to justify targeting outspoken opponents of the government. After the clash at the Capitol, Biden wasted no time denouncing the January 6 protestors as “domestic terrorists.” Press accounts of the arrests of the protestors breathlessly recounted how many firearms were found in their homes—regardless that those individuals did not tote their AR-15s, shotguns, and Glocks with them when they “unlawfully entered” that “Temple of Democracy,” the U.S. Capitol. Any such crackdown would have legions of cheerleaders in the mainstream media.
The Biden administration’s support for warrantless “community caretaking” police raids must be viewed in light of previous perverse legal innovations that unleashed tyranny. Going back to the 18th century, British and American judges recognized that “a man’s home is his castle.” But the drug war obliterated that notion with legal doctrines that should have been laughed out of court. Instead, the combined peril of narcotics and flush toilets nullified limits on police power. In a 1995 brief to the Supreme Court, Clinton’s Justice Department stressed that “various indoor plumbing facilities… did not exist” in early America when the “knock-and-announce” rule for searches of homes was adopted. In a 1997 brief to the Supreme Court, the Clinton administration declared that “it is ordinarily reasonable for police officers to dispense with a pre-entry knock and announcement.” The subsequent Supreme Court decision included a few quibbles but effectively sanctified no-knock raids whenever police claimed a “reasonable suspicion” that evidence might be destroyed. The New York Times noted in 2017 that no-knock warrants were routinely granted permitting “the most extreme force in pursuit of the smallest amounts of drugs, since a few grams are more quickly flushed than a few bales.” The Clinton “flush the Fourth” doctrine spurred an explosion of deadly no-knock raids across the nation. A New York Times investigation found that “at least 81 civilians and 13 law enforcement officers died in raids from 2010 through 2016. Scores of others were maimed or wounded.”
“Government as a damn rascal” was the unwritten premise of the Bill of Rights. The Founding Fathers saw enough depredations by British agents that they recognized the folly of vesting officialdom with absolute power. The Bill of Rights is full of prohibitions (“shall make no law”) precisely because the Founders did not trust politicians to be judge, jury, and executioners on their own “reasonableness.” Nothing that Biden or his appointees have said or done so far justifies exempting them from Thomas Jefferson’s 1799 admonition to “bind those we are obliged to trust with power…from mischief by the chains of the Constitutions.”