In recent weeks, “red flag” laws, to enable the government to confiscate a person’s firearms and extinguish their Second Amendment rights, have been proposed as a “solution” to prevent mass shootings. The NRA opposes these gun confiscation orders and believes “red flag” laws are unconstitutional.
“Red flag” gun confiscation orders strip Constitutional rights without due process
As enacted in a handful of states, “red flag” laws grant the government the authority to seize a person’s firearms ex parte. This means that these confiscation orders are issued without a hearing or other opportunity for the target of the order to be heard and present evidence. Moreover, this type of legislation typically permits the government to seize firearms based on weak and nebulous standards of evidence. A gun owner can lose their rights based on a mere accusation.
“Red flag” gun confiscation orders violate the Second Amendment
Aside from due process concerns, the U.S. Supreme Court decision in New York State Rifle & Pistol Association v. Bruen (2022) suggests that “red flag” gun confiscation orders are unconstitutional solely on Second Amendment grounds. Justice Clarence Thomas’s opinion made clear that in order for a firearm regulation to pass constitutional muster it must fit within the text, history, and tradition of the Second Amendment right. Specifically, the opinion noted,
[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
That poses a problem for “red flag” law backers, who are eager to stress the “innovative” nature of the gun control measure.
In 2019, Giffords Managing Director Robin Lloyd described state “red flag” laws as “innovative policy solutions.”
In 2014, while pushing California’s “red flag” law Everytown for Gun Safety put out a press release titled, “Moms Demand Action Urges Passage of Innovative Gun Violence Prevention Bill.”
Following Bruen, a February 2 decision in the U.S. Court of Appeals for the Fifth Circuit invalidated a federal firearms prohibition that is based on a similar civil order. The decision explained,
The distinction between a criminal and civil proceeding is important because criminal proceedings have afforded the accused substantial protections throughout our Nation’s history. In crafting the Bill of Rights, the Founders were plainly attuned to preservation of these protections. See U.S. Const. amend. IV; U.S. Const. amend. V; U.S. Const. amend. VI; U.S. Const. amend. VIII. It is therefore significant that § 922(g)(8) works to eliminate the Second Amendment right of individuals subject merely to civil process.
By this logic, “red flag” gun confiscation schemes should be found similarly unconstitutional.
“Red flag” gun confiscation orders do not address the underlying “dangerous” individual
“Red flag” laws strip a person of a Constitutional right without addressing the allegedly dangerous person’s underlying mental health condition or conduct. This leaves the potentially dangerous individual free to continue their course of conduct. If a “red flag” gun confiscation order is used in lieu of a more comprehensive method of addressing the individual’s condition, the procedure could hurt rather than help an individual in need of services and those around them.
Tennessee already has broad civil commitment laws
T. C. A. § 33-6-402 provides for the immediate detention of dangerous individuals experiencing a mental health crisis by a law enforcement officer, physician, psychologist, or certain other designated professionals. This procedure can be utilized when,
(1) a person has a mental illness or serious emotional disturbance, AND
(2) the person poses an immediate substantial likelihood of serious harm… because of the mental illness or serious emotional disturbance,
A person detained in this manner is then evaluated to determine whether they meet the criteria for admission to a hospital or treatment resource.
Tennessee could improve access to emergency mental health services. A 2016 report from the Treatment Advocacy Center determined that the Volunteer State ranked 41 out of the 50 states and the District of Columbia in state hospital psychiatric beds per capita.
“Red flag” gun confiscation orders create dangerous confrontations between citizens and police
“Red flag” laws create confrontations between an armed individual in their abode and the law enforcement officers tasked with disarming them. The problem is particularly acute in the ex parte context, where the arrival of an officer may be the individual’s first notice that their rights have been abrogated.
At 5:17 a.m. November 5, 2018, police served a “red flag” gun confiscation order on the home of Gary J. Willis in Anne Arundel County, Md. According to the Baltimore Sun, Willis brought a firearm when he answered the early morning knock at his door. The confrontation ultimately ended with police shooting and killing Willis in his own home.
“Red flag” laws invite abuse
In January 2020, a woman in Larimer County, Colo. attempted to use the state’s “extreme risk protection order” scheme to retaliate against a law enforcement officer with whom the woman had an interpersonal dispute.
On October 11, 2019, a person tweeted out a video of Ben Shapiro, founder of Nashville, Tenn.-based The Daily Wire, in which the conservative political commentator expressed his willingness to defend his family in his own home with a firearm. That same day, failed Democratic presidential candidate Rep. Eric Swalwell (D-Calif.) suggested a willingness to abuse “red flag” gun confiscation orders to disarm his political opponents. Along with retweeting the video, Swalwell stated, “Please tell me this lunatic does not own a gun. Reason 1,578 America needs red flag laws.”
On June 13, 2022, then-Missouri Attorney General and current U.S. Sen. Eric Schmitt (R-Mo.) told Fox News, “Why wouldn’t we believe that these folks are going to weaponize Red Flag laws to punish their political opponents?” The abuse of government power against political opponents has become so prevalent in modern America, that the 118th U.S. House of Representatives instituted the Select Subcommittee on the Weaponization of the Federal Government.
There is no solid evidence to support “red flag” laws
An examination of the available research on “The Effects of Extreme Risk Protection Orders” conducted by the RAND Corporation, updated earlier this year, found no conclusive evidence that “red flag” laws reduced violent crime, mass shootings, suicide, or unintentional injuries and deaths.
Based on these facts, the NRA strongly opposes “Red Flag” gun confiscation orders.
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