BILL #: To Be Assigned

ISSUE: "Red Flag" Gun Prohibition & Confiscation Order Laws (a.k.a. "Extreme Risk Protection Orders" or "Gun Violence Restraining Orders")

FPC POSITION: OPPOSE

Sen. Marco Rubio (R-FL) is introducing federal legislation to promote "red flag" gun prohibition and confiscation order schemes. Sadly, this legislation was encouraged by President Donald Trump, who once famously said, "take the guns first, go through due process second."

This may be the most dangerous anti-Second Amendment legislation in the 2019-2020 congressional session -- not only because of what it would mean for gun owners, but because it is widely supported by anti-gun Democrats and Republicans alike.

"Red Flag" laws allow people to secretly petition a judge to have your guns taken away WITHOUT due process. The petitioners do not have to prove you have committed a crime -- they can take your gun rights away, followed by a warrant for confiscation of firearms, ammunition, magazines, and gun parts.

And these petitions can sometimes be ex parte -- without you even having notice or being present to defend against the petition.

In fact, in some states, a court “may consider any other evidence of an increased risk for violence, including, but not limited to....[e]vidence of recent acquisition of firearms, ammunition, or other deadly weapons.” In other words, if someone recently exercised their Second Amendment rights, that could be construed as evidence that they are an “increased risk for violence” and should have a "red flag" order issue against them.

In an ex parte situation, the subject of an order might not even know about it, let alone voluntarily decide to give up their property once they do know. And if it’s an order issued after notice and a hearing, then that subject, if they really are dangerous, gets to maintain possession of weapons until someone takes their weapons from them—if they can find them—or until there’s a warrant, search, and seizure of property.

While a firearm is, of course, personal property, the interest at stake here is far more substantial than the deprivation of a mere possession. “[T]he right to keep and bear arms” is “among those fundamental rights necessary to our system of ordered liberty.” McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 3042 (2010). And by establishing a scheme that would prohibit possession (and allow for seizure) of firearms, "red flag" laws strike at the core of the Second Amendment: the right to keep and bear arms in the home for self-defense. District of Columbia v. Heller, 554 U.S. 570, 630 635 (2008).

But it gets worse. "red flag" laws and their underlying statutes skip past due process. The Due Process Clause guarantees that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” (U.S. Const., amend. V.) Because “[t]he right to prior notice and a hearing is central to the Constitution's command of due process,” United States v. James Daniel Good Real Property, 510 U.S. 43, 53 (1993), the “general rule” is “that individuals must receive notice and an opportunity to be heard before the Government deprives them of property.” (Id. at 48.)

If someone is dangerous enough, due to criminal activity or mental health problems, to be a real threat to themselves or others, then there are many laws by which families, friends, or law enforcement can more appropriately and effectively respond to them.

But if the government does not have enough evidence to investigate or charge a person with a crime or hold them for a mental health evaluation, then the government has not met its burden for taking away rights and property under any scheme.

"Red flag" laws stand for the proposition that everyone is guilty unless they can prove their way out of an accusation. And "red flag" laws are unconstitutional and dangerous.

FPC strongly opposes “red flag“ laws on practical, policy, and constitutional grounds.

Please stand with us and OPPOSE this legislation!