A state court trial judge in Orange County, N.Y., has ruled that New York’s “red flag” law is unconstitutional. His reasoning is dubious.

Gun control faces four practical problems. First, while most everyone agrees that we should want guns out of the hands of criminals and dangerously unbalanced people, the overwhelming majority of gun owners are law-abiding citizens who pose no threat to anyone. Second, criminals and dangerously unbalanced people are less likely to abide by laws, so most efforts to restrict the sale, possession, or carrying of guns across the board are likelier to target the wrong people. Third, any effort to restrict who can own a gun by giving discretion to executive or judicial judgment runs the risk of unfair or discriminatory enforcement. Fourth, the people most in favor of new gun laws tend to be the same people who are least in favor of enforcement.

Red-flag laws represent a thoughtful effort to address the first two problems, by creating a process to identify people who are dangerous and get guns out of their hands, while leaving untouched the gun rights of people who are not determined to be dangerous. There is some constitutional basis for focusing on dangerousness: Early American laws focused on this as a factor in prohibiting gun ownership, in particular in determining what sorts of criminal convictions should result in the loss of the right to own a gun. But the devil is in the details. Second Amendment advocates have some legitimate concerns about due process of law and about that third problem (unfair or discriminatory enforcement) in how some of these laws are designed. Gun-control advocates have some reason to worry about the fourth problem (lack of enforcement): Some recent mass shootings have been carried out by people who could legally have been disarmed under their state’s red-flag law, but weren’t.

So, Justice Craig Stephen Brown’s three-page opinion grapples with a serious debate, albeit at the summary length that is common in state trial court opinions. He is also dealing with Governor Kathy Hochul’s effort to ramp up enforcement of New York’s red-flag law by mandating enforcement of the law. As he noted in a footnote:

On May 18, 2022, Governor Hochul signed an Executive Order limiting the discretion of law enforcement and requiring that the New York State Police “must” file applications for [Extreme Risk Protection Orders], even if the respondent would otherwise already be prevented from purchasing or possessing a firearm, rifle, or shotgun. While certainly well-intentioned, the far-reaching impact of the Executive Order has resulted in applications being filed and hearings held in hundreds of cases where seasoned law enforcement officers would have been aware that the respondents in those cases already were prevented from purchasing or possessing a firearm, rifle, or shotgun, thereby eliminating the necessity for an application to be filed.

Hochul’s order grew out of the general statewide breakdown in county-level compliance with state laws and gubernatorial executive orders: red-county executives and district attorneys have grown tired of dictates from Albany (for example, multiple county executives flatly refused to abide by Hochul’s mask mandates at the tail end of the Covid crisis), while blue counties elect district attorneys such as Alvin Bragg who have just refused to prosecute whole categories of crime, including gun possession. But the result is a demand for blind enforcement of the law even when it is completely duplicative and symbolic and wasteful of the time of courts and law enforcement. Orange County District Attorney David Hoovler celebrated today’s decision: “Since August of 2022, we have handled, just in the DA’s office, 150 of them, 109 were granted. Forty-one of them were either denied or settled, so this is definitely a game-changer. I think Judge Brown’s decision is well reasoned and well thought out, and I think the statute needs to be procedurally fixed.” Undoubtedly, the state appellate courts will be called to decide the question.

Here’s the problem. Justice Brown’s complaint with the due process provided by the statute is that it doesn’t provide enough psychiatric process:

While ‘a licensed physician’ or ‘licensed psychiatrist’ may (under the law), be a petitioner, there is no requirement that such licensed professional be a petitioner or be involved in any manner to provide any evaluation or opinion whatsoever as a basis for the issuance of a Temporary Extreme Risk Protection Order…or a Final Extreme Risk Protection Order…Therein lies one constitutional impediment with New York’s Red Flag Law.

Without the requirement of any input from a medical or mental health expert, the court is required to make a determination of whether the respondent ‘is likely to engage in conduct that would result in serious harm to himself, herself, or others.’ Under [New York Mental Hygiene Law], a person’s liberty rights cannot be curtailed unless a physician opines that the person is suffering from a condition ‘likely to result in serious harm’ Further, in order to extend any curtailment of liberty beyond 48 hours, a second doctor’s opinion must be obtained and such opinion must be consistent with the first doctor’s opinion. Absent from New York’s Red Flag Law is any provision whatsoever requiring even a single medical or mental health expert opinion providing a basis for the order to be issued.

While the opinion also noted that the law was “replete with issues” regarding the representation of underage and other vulnerable respondents, that was not offered as the basis of the decision; Justice Brown focused instead on the absence of an opinion by a physician, and concluded that this was an insufficient safeguard for the deprivation of a constitutional right, specifically the Second Amendment right to keep and bear arms.

This is misguided. Dangerousness is a legal determination, not a medical one, and there is nothing anywhere in the Constitution that empowers medical or scientific expert opinions before the government may act. It is doubtful that a court conducting the sort of serious originalist analysis required by the Supreme Court’s Bruen decision would make constitutionality of a red-flag law under the Second Amendment turn on whether the proof of dangerousness is presented by a member of the psychiatric profession, given that psychiatry didn’t even exist in 1791. Whatever process is due before depriving a citizen of the right to a gun, the ultimate determination of dangerousness is one to be made by a court (whether a judge or a jury). A psychiatric evaluation may be very helpful in that decision, but there is no constitutional right to a shrink.