Red Flag Laws: Are they coming for YOUR guns?!

On February 14, 2018, a nineteen-year-old former student walked into the Marjory Stoneman Douglas High School in Parkland, FL, and fatally shot 17 people. There was an immediate national outcry to “do something” to stop the violence. When information emerged that the shooter had documented mental health issues, lawmakers across the country began pushing for laws that would take away guns from individuals whose behavior raises a “red flag” that he or she could be a threat to themselves or others.

The purpose of these laws is to identify an individual that exhibits early warning signs of danger and prevent a criminal act from occurring by preemptively disarming the individual.

Commonly referred to as “Red Flag” laws, these bills model those already in existence in Connecticut, California, Indiana, Washington, and Oregon. In the fourteen months since the Parkland incident, ten more states have enacted their own versions. These states include Florida, Delaware, New York, Illinois, Massachusetts, New Jersey, Maryland, Rhode Island, Vermont, and Colorado. Twenty-three other states have proposed measures of their own as of April 17, 2019.

How Do these Laws Work?

Red Flag bills allow police or family members to petition a state court to remove firearms from a person who presents a danger to themselves or others. At the initial hearing, the petition and evidence are presented supporting the claims the individual in question (the “Respondent”) is a threat. These hearings may be conducted “ex parte,” meaning the respondent is not present to defend himself or herself. If the order is granted, police will execute the order removing firearms with no notice to the Respondent.

If the initial hearing is ex parte, the court schedules another hearing to take place within a few weeks for the Respondent to attend and present evidence to refute the claims. If the Respondent is successful in their defense, the temporary order will be dismissed and the firearms returned. However, if the judge rules against the Respondent, the order will be extended by a period of up to one year.

“Red Flag” laws have also attracted the attention of federal lawmakers. Last year, on March 8, 2018, an unsuccessful bill was introduced in the U.S. Senate, led by Sen. Lindsey Graham (R-SC) and Sen. Richard Blumenthal (D-CT), that would have created a federal process for Red Flag firearm removal.

On January 3, 2019, Sen. Marco Rubio (R-FL) introduced S. 7, entitled the “Extreme Risk Protection Order and Violence Prevention Act of 2019.” The bill was read twice and referred to the Committee on the Judiciary. Sen. Rubio’s bill would provide grant money to states that enact extreme risk protection order legislation that meets certain federally mandated minimum standard requirements.

Bipartisan Support

In a rare display of bipartisanship, Senate Judiciary Committee members from both parties seemed to offer their support for the growing movement among states to pass extreme risk protection orders. Chairman Sen. Graham, (R-SC) indicated he believed these laws to be beneficial, “even if you just stop one” death.

So, why all the bipartisan support for a traditionally left-leaning position?

Powerful people in the Republican party have come out in support of Red Flag laws, making it easier for the rank and file members of the party to accept some versions of these laws, especially since Red Flag laws do not impose new regulations on firearms themselves, but address the issue of mental health.

Shortly after the Parkland shooting, President Donald Trump expressed support for Red Flag laws. The Trump Administration formed the Federal Commission on School Safety last year following Parkland, and it too, endorsed Red Flag laws.

More recently, during his confirmation hearing in front of the U.S. Senate Judiciary Committee, now-U.S. Attorney General William Barr said that Red Flag laws are “the single most important thing we can do in the gun control area to stop these mass shootings from happening in the first place.”

But perhaps more telling are the polls that show a vast majority of Americans support Red Flag laws. A recent poll by the University of Texas and the Texas Tribune indicate 72% of Texans favor such legislation. A poll conducted by Everytown for Gun Safety claims nearly 90% of Americans support passing Red Flag legislation, “including more than 80% of Republicans and gun-owning households.”

Elected lawmakers are paying attention.

Red Flag Laws and the Second Amendment

We all recognize that the Second Amendment does not create an absolute right to possess firearms that cannot be restricted under any circumstances. Convicted felons and persons adjudicated mentally incompetent are prohibited from possessing firearms, for example. But in these cases, the individual rights were taken away only after due process of law—a criminal trial or a mental-competency proceeding.

Red Flag laws allow the individual’s firearms to be confiscated without knowledge there was a petition filed against them and without the opportunity to defend themselves against the allegations. Isn’t that a clear case of violation of due process rights?

Not necessarily.

Both the Fifth and Fourteenth Amendments to the United States Constitution contain a due process clause that acts as a safeguard from the arbitrary denial of life, liberty, or property by the government. Procedural due process is meant to protect an individual from being deprived of life, liberty, or property unjustly or as the result of a mistake by allowing the person to contest the basis upon which the government seeks to deprive them of a protected interest. The individual must be afforded notice and a hearing before an impartial court is to confront and cross-exam his or her accusers.

However, the Supreme Court has said that due process requirements depend upon the circumstances. The Supreme Court noted in Walters v. National Association of Radiation Survivors, 473 U.S. 305, 320 (1985) that due process:

“is a flexible concept—[and] the process required by the clause with respect to termination of a protected interest will vary depending upon the importance attached to the interest and the particular circumstances under which the deprivation may occur.”

To learn more about your state laws regarding firearm possession or justifiable use of force, sign up to attend a workshop or seminar and hear directly from an Independent Program Attorney in your state as they explain the laws and answer your questions.

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Comment section

19 comments on “Red Flag Laws: Are they coming for YOUR guns?!

  1. Ok. Then how are they going to regulate guns illegally in the hands of criminals already. How are they going to regulate the guns in the hands of gangsters who will use them when you report them. Adding more laws or regulations to nothing more than harras law abiding citizens is not helping but empowering the criminal element.

  2. I generally support these laws due to extensive experience with mentally ill family members. Please you people that disagree with these laws spend some time learning the messy reality of mental illness at NAMI.ORG Yes these laws can be abused but they can also be very helpful preventing bad situations from getting worse and if you read the conditions you realize it is not very easy to actually “use” these red flag laws

  3. If an anonymous criminal, who suspects that a potential elderly victim has a concealed firearm, calls local police and states, “some crazy old man pointed his gun at me and threatened to kill me..for no reason!” Can police then act – without consulting the “crazy old man”- to obtain a court order for confiscating the elderly man’s gun?

  4. The red flag law is just another stepping stone to take our guns. I can see it for those who have been deemed mentally unstable by a psychologist but not by another person who just thinks you are to crazy to own a gun. Next they will take your guns if a person is on an antidepressant or seeks counseling. God help us all.

  5. Have a feeling that red flag laws will soon be a thing in all 50 states. Just wondering how badly abused will it be, example if I had a problem with John Doe and make a false statement to courts. If courts feel that removing firearms from John Does house. Wonder what hoops John Doe would have to go thru to prove false claim on it and get the firearms back or if there would be any legal recourse against person that filled false claim

  6. Have a feeling that red flag laws will soon be a thing in all 50 states. Just wondering how badly abused will it be, example if I had a problem with John Doe and make a false statement to courts. If courts feel that removing firearms from John Does house. Wonder what hoops John Doe would have to go thru to prove false claim on it and get the firearms back or if there would be any legal recourse against person that filled false claim

  7. My understanding of some or all allow anyone to file for this, you ex-wife/husband, neighbor or someone that does not like you. This all takes place before you know. That is not right.

  8. This is just the beginning of taking our guns away from us. The Jeannie out of the bottle now. Any one can say he or she not fit about anything it’s all subjective.

  9. Every law-abiding citizen demands increased safety from illegal use of firearms. However, it seems the Red Flag laws leave some gaping holes in the process: political bias of accusers or professionals evaluating the accused. Are there legal or civil rights to the accused when accusers falsify charges or when professionals with political bias bring charges? Can we assume judges protect against political bias?

  10. What appears to be overlooked in the case of the Parkland, Florida shooting is that school administrators conspired with local police to hide the fact of significant juvenile misconduct and psychotic behavior over a long period of time, and did not intentionally in order to avoid criticism or low marks during school district educational performance evaluations. This is how we define corruption in local politics. Government entities and officials have a responsibility to act responsibly and in a timely manner to address mental health issues.

    I do not believe that any responsible citizen wants to see a troubled individual in legal possession of a firearm. Neither must we assume that an allegation is true simply because someone made it. A balance of interests in individual liberty and public safety is necessary.

    If there is reason to believe that a citizen is a high risk of endangering him or herself, or others, then let the accuser submit his concerns to an advocate of the court … no hiding behind anonymity. When lawful authority receives such a complaint, then the court should (a) take temporary custody of lawfully owned weapons, (b) order an in-depth psychic examination (paid for by the state), and (c) hear all evidence in an open court. A competent court will not require any advice from me about its rulings. Anything less than this runs contrary to the spirit and intent of the US Constitution.

  11. It’s good we are inform everything that’s going on.

  12. Historically speaking, this is how tyranny begins – it starts off as something that seems “reasonable” for “safety” purposes. For those advocating for this horrifying standard b/c you know something about mental health patients, the potential costs far outweigh the potential benefits for such legislation. Even the idea of mass shootings is scary, but not nearly as scary as the idea of being completely oppressed by a governing body, crime syndicate, terrorist organization, etc.

  13. Two questions:
    1. What is the burden of proof for these laws? The preponderance of the evidence (civil) or beyond a reasonable doubt (criminal)?
    2. What happens after the initial 1 yr period? Automatic renewal if the respondent doesn’t challenge it, an ex parte hearing or a full hearing, etc.?

  14. First of all, I do think this is just another step to take our guns away in the end, this has been proven in history and other countries. Second, nobody has mentioned the fact that there is no registration in most states so how would the police know where to go and how many guns the person has?Think about it, this is just a step towards national registration which is national confiscation it’s all in the history folks learn your history!

  15. I support taking guns or any weapon away from felons or mentally ill persons, however I thought that in the United States that a person was innocent until proven guilty. A trial without the accused being present should never happen here. Both the accuser and the defendant need to be at the hearing. To say lets take away Billy’s guns because some unsigned letter arrives at the police station is wrong!

  16. After knowing how some States and NYC abuse their authority in issuing (or not issuing permits), I do not trust them to respect our 2nd Amendment rights. The best defense against mass murder is more responsible citizens carrying firearms with them and eliminating so-called gun free zones in most places.

  17. The really serious problem with this red flag law is it only takes someone who doesn’t like you are a beef against you like an ex or a neighbor and file a complaint on you and then you’re guilty until you prove your innocent. The law is suppose to be you’re innocent until proven guilty,but this is backwards!

  18. I understand why they passed the law, but like all the other laws they pass they are focusing on the “guns” and not the problem “people”. I also worry that like all the others laws on the books the police and the system will over step their power and the law abiding citizen will pay the price.

  19. citizens who give up a part of their freedom for a large measure of safety are doomed to lose all their freedoms. this law should only apply to those people deemed legally incompetent to handle their own affairs, and the lawmakers who vote for it.

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