What Are Red Flag Laws?

Recently, the Senate passed the “Bipartisan Safer Communities Act,” which includes funding for red flag laws. Garnering the support of 14 Republican Senators, these provisions trample the Bill of Rights. But what are red flag laws and what is the potential for abuse? As the bill goes to the House, we will take a look at its potential hazards.

What Are Red Flag Laws?

In short, extreme risk protection orders (red flag laws) are a means for the government to circumvent due process. Specifically, they are intended to preemptively disarm someone who shows warning signs of being a danger to themselves or others.

According to U.S. LawShield, “Many states with Red Flag laws allow a court order to not only remove someone’s current firearms, but to also prevent them from owning, purchasing, possessing, or transporting firearms and ammo for a specified period of time. Generally, there’s an initial temporary firearm restraining order that lasts for several weeks, but this initial order can last even longer in some states. And most jurisdictions allow the extension of these orders if the person is still ‘deemed a threat.’”

In order for the red flag law process to begin, a law enforcement officer, family member, or household member has to petition the court. However, some states also allow petitions from school officials, health care workers, and coworkers.

Once the petition is filed the court holds a hearing where the person filing the petition provides evidence of the claim. But the standards of proof are lower than that of “beyond a reasonable doubt,” as in a criminal trial. The two standards of proof are “preponderance of the evidence” and “clear and convincing evidence.”

U.S. LawShiled goes on to say, “If the order is granted, the judge may issue a warrant allowing law enforcement officials to search the Respondent’s property and confiscate weapons, sometimes without any prior notice. At that point, most states require the police to arrange safe storage of the firearm(s) for the duration of the order.”

Recently, Governor Tom Wolf posted an infographic explaining how red flag laws work, which was immediately corrected by Gun Owners of America.

A Clear Violation of the Constitution

Aside from the Second Amendment, red flag laws violate three important constitutional rights—the Fourth, Fifth, and Fourteenth Amendments.

First, by violating due process rights, gun owners (and only gun owners) are denied their Fifth and Fourteenth Amendment rights. The way red flag laws work allows for officials to hold a hearing without the accused even knowing about it.

A recent Breitbart News article states, “Often, the gun owner is not even notified of the accusations leveled against him or allowed to participate in the initial hearing deciding his fate. That’s right, the gun owner may not even be aware that his constitutional right to keep and bear arms is under attack. So, he can’t contest or refute the allegations made against him or challenge the accuser’s credibility.”

According to the 2010 case McDonald v. Chicago, the Supreme Court affirmed that the government cannot infringe on the right to keep and bear arms without respecting due process. We have a right to defend ourselves in this country, as well as the right to face our accuser. Red flag laws circumvent those rights and this precedent.

As a result, this leads directly to infringement on our Fourth Amendment guarantee against unreasonable search and seizure. If you are unable to be a part of any hearing that leads to the seizure of your firearms, it is unreasonable.

This is yet another aspect of the legislation that the U.S. Supreme Court has set prior precedence regarding.

The Breitbart article goes on to say, “Last year, in a case called Caniglia v. Strom, the U.S. Supreme Court overturned a lower court decision allowing the police to enter a man’s home without a warrant and to confiscate his firearms.”

Ripe for Abuse

The potential for abuse of these measures will do more to affect law-abiding gun owners than curb gun violence. But every time there is a mass shooting, this becomes a hot talking point. It’s nothing more than a backdoor attempt to limit access to guns for law-abiding citizens, dressed up as public safety.

Although, it could end up being even more devious than that. When you consider the rise in “swatting” over recent years it is easy to see the potential for abuse. Not to mention, the ATF themselves encouraged people to turn in their ex on Valentine’s Day this year. If that isn’t an omen that the government will encourage abuse, I don’t know what is.

The National Rifle Association even points out a tweet from Rep. Eric Swalwell, in which he comments on a video of conservative political commentator Ben Shapiro stating his willingness to protect his family in his own home with a firearm:

“Failed Democratic presidential candidate Rep. Eric Swalwell (D-Calif.) retweeted the video, along with the statement, ‘Please tell me this lunatic does not own a gun. Reason 1,578 America needs red flag laws.’”

This has all the hallmarks of an attack on a political opponent. And red flag laws are the perfect tool.

Highlighting a Newsmax interview with Sen. Marco Rubio (R-FL), Breitbart had this to say:

“Rubio, noting the federal government had ‘become the enforcer of woke ideology in America,’ called into question allowing the government to be in charge of enforcing red flag laws. He said the American people were ‘increasingly suspicious and doubtful’ of the government as a result.”

Proving his point, a recent poll shows that a majority of Americans believe red flag laws will be abused by the government.

Creating Red Flags

With politicians demonstrating a willingness to target political opposition, the media is in overdrive creating red flags. Specifically, they are building the narrative that Republicans are domestic terrorists. If you’re labeled a domestic terrorist, I imagine that would be considered a red flag.

A recent Salon article states, “Based on its increasing support for right-wing political violence, the Republican Party is now a de facto terrorist organization as well.”

Likewise, the CSIS (Center for Strategic & International Studies) says, “Most domestic terrorist attacks and plots between January 1 and August 31, 2020 were committed by white supremacists, anti-government extremists from the violent far-right, and involuntary celibates (incels).”

Also, the View hosts had a lot to say after a domestic terrorism bill was voted down. Host Whoopie Goldberg claimed it was voted down because “domestic terrorists are voting on the bill.” i.e., Republicans.

Host Sunny Hostin also commented, “What has changed is, the most extremist violence in the U.S. comes from the political right.”

AnInjusticeMag.com has an entire piece titled, “Republicans Have Evolved From a Hate Group to an Organization of Domestic Terrorism.”

There is even a Facebook group literally titled, “Republicans are Domestic Terrorists.” Granted it’s not big but it’s out there.

Do you see the problem here? It goes on and on like this. Twitter is a hotbed of this kind of rhetoric.

A True Threat to Our Civil Liberties

Although there are currently 19 states with some sort of red flag laws in place, this new bill would make it more widespread. With a large monetary incentive for states to adopt these laws, it would be hard for states to say no.

However, the story of a Maryland man who was shot and killed in his home at 5:17 in the morning demonstrates the inherent risks of these laws. The man was awoken early in the morning to police serving an Extreme Risk Protective Order. He answered the door with a pistol which he set down when he realized it was the police. When they told him they were there for his guns, he refused, picked up the pistol, and was shot.

These laws have little to do with gun safety or saving lives and everything to do with targeting law-abiding gun owners. The architects of this bill know that for the most part gun owners are honest, law-abiding people. We generally follow federal and state law and mind our Ps and Qs.

For this reason, lawful gun owners are the only people these gun control measures will affect. Criminals are criminals because they don’t care about the law. And the likelihood that someone is going to turn in a dangerous, violent felon or gang banger is slim and none. Because everyone knows, they will still be violent, get a gun, and target you.

Now that the bill has passed the Senate, let us hope and pray that the House shuts it down. This would be a major blow to civil liberties in this country. When the Second Amendment goes down, they all go down.

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