August 5, 2019 – Firearms Policy Coalition issued the following statement regarding demands for new gun control, including so-called “red flag” confiscation laws:

This morning, President Trump stated that “Republicans and Democrats must come together and get strong background checks,” called for “real bipartisan solutions” that will “truly make America safer and better for all,” including ‘Minority Report’-style “tools that can detect mass shooters before they strike,” and so-called “red flag” legislation.

It is also being reported that Senate Judiciary Committee Chairman Lindsey Graham (R-SC) has cut a deal with Sen. Blumenthal (D-CT) on legislation that President Trump “seems very supportive” of. Firearms Policy Coalition and our members are not.

FPC has been and remains strongly opposed to so-called “red flag” laws, also known as “Gun Violence Restraining Order” (GVRO) or “Extreme Risk Protection Order” (ERPO) statutes. 

FPC also remains strongly opposed to expanding federal criminal statutes, including but not limited to those mandating “universal background checks”.

These proposed laws do not increase access to mental healthcare or improve public safety. They rely on expanding federal powers through further abuse of the Commerce Clause and are unconstitutional, as well as dangerous.

FPC Policy Positions on “Red Flag” Confiscation Order Laws

Red flag laws stand for the proposition that gun owners can have their rights and property taken from them – by force – on the basis of allegations without the government having even reasonable suspicion, let alone probable cause or constitutionally sufficient adjudication.

If the government does not have probable cause for an arrest or search warrant, a material basis upon which to subject a person to a mental health evaluation, or even “reasonable suspicion” to support the detention of an individual, then the government surely has not met its burden for taking away a person’s fundamental, individual rights and lawfully-acquired property.

So-called “red flag” laws require a respondent to hire expensive attorneys and spend thousands of dollars to defend against a petition, petition for or litigate appeals, and restore rights and recover seized or surrendered property, shifting the burden of the “red flag” scheme to the individual. 

Most “red flag” respondents are unlikely to have the resources to engage specialized legal counsel, and thus “red flag” laws will disproportionately impact the poor. And even if they could afford to hire legal counsel, and even if they ultimately prevail, their attorney’s fees and costs are almost certainly nonrecoverable.

Firearms and ammunition are valuable personal property. But the interest at stake here is far more substantial than the deprivation of mere possession of such property: “[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).)

By establishing statutory and regulatory schemes that prohibit an individual’s possession of firearms, and in some cases even require the seizure of firearms and ammunition,“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).)

“Red flag” orders and their underlying statutes also drive a stake into the heart of our Nation’s fundamental principles. The Fifth Amendment’s Due Process Clause guarantees that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” (U.S. Constitution, amendment V.)

Indeed, “red flag” statutes often contain no notice requirement at all, and even where “red flag” laws provide that notice may be given, most do not require that the respondent be actually served with notice. For example, in California, “red flag” orders may be issued against someone who is completely unaware of the existence of a petition, let alone a hearing or an order. And even if a “red flag” order is issued, they are not required to be personally served on the subject unless “the restrained person can reasonably be located.”

Worse, some “red flag” laws even provide for secret ex parte proceedings. That means a petitioning law enforcement officer or person may present their arguments to a court without the subject of the petition being present—or perhaps altogether unaware of the petition and hearing on the future of their rights and property.

And under some “red flag” laws, a court can even “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 a person recently exercised their fundamental, individual Second Amendment rights, that in and of itself could be construed as “evidence” that they are an “increased risk for violence” and thus should have a “red flag” order and property seizure warrant issue against them. 

If a person is an actual threat to themselves or others, or engaging in criminal activity, then there are thousands of existing federal, state, and local laws by which families, friends, or law enforcement can more appropriately and effectively respond to those facts and circumstances. 

Moreover, “red flag” laws do not improve access to mental health care or address the important issues of untreated or under-treated mental illness. And “red flag” laws may even discourage or serve as a deterrent to those who might otherwise seek mental health treatment or counseling.

Red flag firearm prohibition and confiscation laws are unconstitutional, unsound, and dangerous policies. They should and must be opposed – not rewarded with millions of taxpayer dollars. FPC will grade all votes on federal “red flag” legislation, publish legislative history, and distribute this information to our members, supporters, activists, and the public.

FPC Grassroots Alert

FPC encourages gun owners and liberty advocates to immediately take action by doing the following: 

1. Write President Trump, Senate Leader McConnell, Senate Judiciary Committee Chairman Graham, and other key leaders at StopRedFlagLaws.com
2. Call Senate Leader McConnell and your state’s U.S. Senators at 202-224-3121 (Senate switchboard) and tell them to OPPOSE “red flag” laws and federal gun control
3. Call President Trump at 202-456-1111 (White House comment line) and tell him to OPPOSE and VETO federal gun control and “red flag” laws
4. Multiply your impact by asking others to help you STOP “red flag” confiscation laws through email, text messaging, social media, and by sharing this important FPC Grassroots Alert

Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to protect and defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms, advance individual liberty, and restore freedom. Gun owners and Second Amendment supporters can join the FPC Grassroots Army at JoinFPC.org.