The Minnesota Legislature is considering two bills aimed at reducing gun crime. You will hear arguments against these proposals. In my opinion, these arguments are legally false.
One of the bills would place additional restrictions on the private sales of firearms. The perceived problem is often referred to as the “gun show loophole.” Current law requires buyers to undergo background checks before a purchase can be made from a licensed firearms dealer. This requirement has been in place for decades and has passed numerous challenges. The law does not require a background check if the seller is not a licensed firearms dealer. Opponents argue that this proposal is a violation of a right provided by the Second Amendment to the Constitution. Simple logic: why would the status of the seller suddenly raise the concept to become a violation of rights? The inconvenience of having to undergo a criminal history check, in my view, simply is inconsequential if the proposal prevents a single fatality.
Another often-cited reason for opposing closing the loophole is that it makes it hard to lend someone a gun for hunting or to pass down a firearm to another generation. The proposals resolve these problems, though, so there really is no basis for this objection.
An objection I have heard is that there have been many false positives in the process involving purchases from licensed dealers by someone with a valid permit to carry a firearm in public. No evidence has been offered that I’ve heard, but I think a possibility is that there was an inadequate review when the carry permit was issued or the person had done something to become ineligible since that permit was issued. A report Tuesday from the Minnesota Department of Public Safety reported that there were 177 permits suspended, 27 revoked, 1,414 voided and 866 denied in 2022. A carry-permit application does not require a review of records from another state, and a carry permit is good for five years.
The second proposal being considered by lawmakers would allow police and family members to petition a court for an order requiring a person to surrender all firearms. The stated objection to such “red flag laws” is they would allow for a seizure of firearms without due process.
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But the petition for an order has to be offered under oath, and it is perjury to lie on an application. The process involves serving the person with the petition, and then there is an opportunity for a hearing before a judge. That’s due process.
The proposal is identical to the process in place for an Order for Protection, or OFP. That law has been in place for many years and is most often used to require that a person stay away from someone who is afraid of being harmed by them.
In my opinion, the red-flag proposal has the potential for reducing domestic-related homicides. Even more compelling is that it is the only proposal I have seen that might stop someone planning a mass shooting. Investigations into mass shootings have revealed shooters writing about doing it or even telling others of their plans. A red-flag law would provide a way for police to react.
Will these two proposals pass?
The answer is not as simple as counting the Republicans and Democrats. The majorities the Democrats hold is slim. In the past, many rural and out-state legislators have not supported gun-related proposals. I haven’t seen any indication on how folks will vote.
What makes you think I know anything about this?
I spent the last 10 of my 34 years with the St. Paul City Attorney’s Office as a prosecutor, and I worked on hundreds of gun-crime cases. I wrote a manual on how to deal with gun crime, taught classes, and lectured about it. After I retired, I volunteered writing proposals on changes to Minnesota statutes in an attempt to address gun crime. These two proposals are some of the things I worked on.
Tom Weyandt of White Bear Lake, Minnesota, was a prosecutor in the city attorney’s office in St. Paul. He can be reached at tom72272@gmail.com.
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The Trust Project
