From Petitio Principii To Lubrico Fastigio

The road to red flag hell is paved with fallacy

By Dan Gifford

Proposals for the enactment of "Red Flag" laws or “Extreme Risk Protective Orders," as some call them, are at the top of the current list of demands by forward thinkers and way too many others who function largely on emotion and assumed truths. But two glaring fallacies underlie those proposals. One is a disproved "self evident" truth (petitio principii) that firearms are inherently evil as are their owners and therefor catalysts for violence while the other rejects the obvious slippery slope (lubrico fastigio) danger that such laws will be misadministered and lead to bad ends that endanger other rights.

Said proposed red flag laws would allow police to violate both one's Second Amendment rights and rights of due process by confiscating one's firearm property based on a claim that the gun owner is unbalanced or prone to violence. The working details vary among the various state and federal versions, but their results are the same. One's constitutional rights may be clipped on the mere fantasy allegation of anyone from an angry wife to a snooping do-gooder and thereby initiate a sequence of events that could, and already has, lead to the deaths of police and gun owners.

The gravity of that scenario becomes all the more likely when a medical professional like a psychiatrist claims a gun owner has gone off the rails. But is a psychiatrist's claim truly an indication of real danger? The petitio principii conviction of most would indicate it is.

But tests of that belief conducted by Stanford University professor of psychiatry David Rosenhan and others in a landmark 1973 study indicate such an opinion is far from a slam dunk fact. Rosenhan had sane people fake hallucinations in order to test that widely held belief that psychiatrists could reliably tell a truly mentally ill person from one who actually had all their marbles in working order. The results showed "psychiatrists cannot reliably tell the difference between people who are sane and those who are insane."

Though Rosenhan received much push back from the psychiatric community, the essence of his conclusion was found as far back as 1887 by investigative journalist Nellie Bly.

She faked symptoms of mental illness to gain access to a lunatic asylum in order to expose its inhumane conditions. At the very least, Bly's fakery and Rosenhan's study bring into question the legitimacy of the psychiatric opinion to which all red flag laws I've seen give added weight regarding who is sane and who is dangerous. Is that warranted?

It has been my observation that shrinks are far from objective about gun owners. For instance, almost all mental health professionals at Johns Hopkins, where my mother was a professor of epidemiology and public health, openly viewed gun ownership as a dangerous compensation for things like low esteem or sexual inadequacy. That bias, I noticed, often masked an elitist desire to restructure and control society to their liking and was expressed as objective fact in the famous 1960s study chaired by former Hopkins president Milton S. Eisenhower, brother of former President  and WWII Supreme Commander, Dwight David Eisenhower.

His National Commission on the Causes and Prevention of Violence study recommended that private handgun ownership be banned. But the bias behind that and other recommendations was stripped away in a later study by the Carter Administration that was intended to confirm the Hopkins findings and provide a launch pad for draconian gun laws. It didn't. Carter researchers found the Hopkins study was "results oriented" and intentionally constructed to come to the conclusions it did. The surprise Carter conclusion shoved under the proverbial publicity rug: "It is commonly hypothesized that much criminal violence, especially homicide, occurs simply because firearms are readily at hand and, thus, that much homicide would not occur were firearms generally less available. There is no persuasive evidence that supports this view." The lead researcher then delivered what remains the coup de grace most have never heard: "a compelling case for gun control cannot be made.

That should have pushed the red flag law idea over the petitio principii precipice, but it didn't. Gun control activists keep making up "truths" that reflect their own irrational biases, mental instabilities and fetishes without any regard to the legal and constitutional lubrico fastigio descent into a police state of informers and arbitrary arrests their statutory remedies would cause.

Red flag law proponents dismiss that scenario and buttress their dismissal with the opinions of academics like Diablo Canyon College philosophy professor Jacob E. Van Vleet. He and other elites generally maintain the slippery slope concerns are fallacies "precisely because we can never know if a whole series of events and/or a certain result is determined to follow one event or action in particular. Usually, but not always, the slippery slope argument is used as a fear tactic." Maybe so, but that's a rhetorical cop out. For there is an overriding reality about the kind of Constitutional rights busting arbitrary power implicit in Red Flag Laws their advocates want that was stated by English Baron John Emerich Edward Dalberg-Acton: "Power tends to corrupt, and absolute power corrupts absolutely."

That does not mean America would slide into an East German style Stasi police state over night. "There is no 'slippery slope' toward loss of liberties, only a long staircase where each step downward must be first tolerated by the American people and their leaders" former U.S. Senator Alan Simpson of Wyoming has said. But "Once the down staircase is set in place, the temptation to take each next step will be irresistible" noted former New York Times columnist William Safire. The late US Supreme Court Justice William O. Douglass understood:

"As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air — however slight — lest we become unwitting victims of the darkness."

And victims we will be.

The righteous urge to destroy our Second Amendment meant to assure an armed population against foreign invaders, the criminals due process rights keep from jail and government power usurpation by rulers will likely lead to the weakening and probable disappearance of other Rights against government abuse. Legal authorities from Sir William Blackstone to William Rawle to Joseph Story and others have noted that relationship. As the Sir Thomas More character in "A Man For All Seasons" asked a zealot who wanted to knock down all the laws of England to find the devil, "do you really think you could stand upright in the winds that would blow then ?"

Wake up and smell the sulphur.

Dan Gifford is a national Emmy-winning,
Oscar-nominated film producer and former
reporter for CNN, The MacNeil Lehrer
News Hour and ABC News.