Federal Bill Aimed at Financing Red Flag Laws Nationwide is Underway

Fifteen states already have red flag laws with provisions for seizing guns. Now U.S. senators are drafting a federal version. (Photo: Levi Sim)

Senators from Connecticut and South Carolina are crossing the aisle to develop a federal grant program to encourage states to adopt red flag laws, which enable authorities to seize guns from individuals deemed a danger to themselves or others.

After mass shootings in Ohio and Texas last weekend, Democratic Sen. Richard Blumenthal (CT) and Republican Sen. Lindsey Graham (SC) have announced that they are working together on this bipartisan legislation.

“These grants will be given to law enforcement so they can hire and consult with mental health professionals to better determine which cases need to be acted upon,” Graham said in a press release. “This grant program also requires robust due process and judicial review. It does allow for quick action.”

Fifteen states currently have red flag laws also known as extreme risk protection orders. ERPOs may be instigated by close friends and family and generally require a court hearing to enable gun seizures. States with red flag laws include:

  • California
  • Colorado
  • Connecticut
  • Delaware
  • DC
  • Florida
  • Illinois
  • Indiana
  • Maryland
  • Massachusetts
  • New Jersey
  • New York
  • Oregon
  • Rhode Island
  • Vermont
  • Washington

Ohio and Texas legislators have already called for similar laws in their states. Connecticut has the oldest red flag law, enacted in 1999. With the heightened awareness of these laws, Connecticut has seen a significant uptick in cases, according to the Associated Press, with 268 warrants issued for gun seizures in 2018.

SEE ALSO: President Trump Calls for Red Flag Laws, Tweets Support for ‘Strong Background Checks’

The National Rifle Association is opposed to the red flag laws already enacted by those fifteen states. They are not, however, opposed to red flag laws generally. Earlier this year, Dan Reid, western director of the NRA, spoke to the Las Vegas Review-Journal about the problems with red flag laws.

“The biggest issue with all these bills is due process,” Reid said. “A person is going to lose their rights based on a third-party allegation. They’ve never been convicted of a crime. They’ve never been adjudicated mentally ill. That’s not how our system of justice should work.”

Back in January, the NRA drafted a list of requirements a red flag law should include to ensure it doesn’t trample one’s constitutional rights:

  • The process should include criminal penalties for those who bring false or frivolous charges.
     
  • An order should only be granted when a judge makes the determination, by clear and convincing evidence, that the person poses a significant risk of danger to themselves or others.
     
  • The process should require the judge to make a determination of whether the person meets the state standard for involuntary commitment. Where the standard for involuntary commitment is met, this should be the course of action taken.
     
  • If an ERPO is granted, the person should receive community-based mental health treatment as a condition of the ERPO. 
     
  • Any ex parte proceeding should include admitting the individual for treatment.
     
  • A person’s Second Amendment rights should only be temporarily deprived after a hearing before a judge, in which the person has notice of the hearing and is given an opportunity to offer evidence on his or her behalf.
     
  • There should be a mechanism in place for the return of firearms upon termination of an ERPO, when a person is ordered to relinquish their firearms as a condition of the order. 
     
  • The ERPO process should allow an individual to challenge or terminate the order, with full due process protections in place.
     
  • The process should allow firearms to be retained by law-abiding third parties, local law enforcement, or a federally licensed firearms dealer when an individual is ordered to relinquish such firearms as a condition of the ERPO. The individual must also have the ability to sell his or her firearms in a reasonable time without violating the order. 

President Trump held a press conference Monday and called for new legislation, including red flag laws.

“We must make sure that those judged to pose a grave risk to public safety do not have access to firearms, and that if they do, those firearms can be taken through rapid due process,” the President said, as GunsAmerica previously reported.

“That is why I’ve called for red flag laws, also known as extreme risk protection orders.”

It appears Sens. Graham and Blumenthal wasted no time in heeding Trump’s call to action.

“We will be finalizing details for this bill and reaching out to colleagues on both sides of the aisle in the coming days and weeks,” Blumenthal said. “I look forward to introducing final legislation with Senator Graham in the very near future.”

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About the author: Levi Sim is an avid hunter, and an increasingly avid shooter. He strives to make delicious and simple recipes from the game he kills. He makes a living as a professional photographer, writer, and photography instructor. Check out his work and he’d love to connect on Instagram: @outdoorslevi

{ 21 comments… add one }
  • Martin D June 23, 2020, 4:29 am

    The jury trial must come before confiscation. The Police and Courts have proven to be corrupt and unrelaible. Welfare checks end in death too many times. And then it is “oh well”. Have a nice day! Officer safety above all else! Someone dies for their own protection? The courts barely recognize the 2nd ammendment. Remember how the judge in Texas treated the woman that opened her hair salon against the Governors Executive Order(not a law). How do you think he would treat people under Red Flag laws.

  • Stir the pot August 11, 2019, 7:42 am

    So Connecticut had some form of red flag law in place in 1999? Did that save the victims in Sandy Hook? A teacher or two with training and a sidearm may have done a better job at protecting those kids, but the law did absolutely nothing.

  • john August 10, 2019, 3:12 pm

    Rubbish! Citizen already killed in own home by overzealous local police in Maryland after spurious red flag complaint from disgruntled family member. Anti 2A, anti American, anti public safety … pro police, pro population control, pro liberal socialist. !

  • Jay August 10, 2019, 6:43 am

    The second Amendment does not apply to Automatic, semi-automatic, bolt action, semi-automatic handguns, revolvers, or single shot firearms. The Second Amendment is a Restriction Placed on Government and the technology involved has absolutely no bearing! The Entire Bill of Rights are not written to give a freeman rights but to put restrictions on the government by We The People. They forbid governments interference in our Rights. The right of The People to keep and bear arms has been interfered with since the 30’s and has to stop! A Truly Freeman will accept nothing but Freedom and Liberty! If you can not understand that Freedom has a cost, move, don’t mess with Our Freedoms!

  • George August 10, 2019, 12:04 am

    So if a person is a poor driver and someone reports them to the authorities will they take their car away?

    • Ricky B. August 20, 2019, 1:30 pm

      If you’re convicted of DWI more than once or even just once when it results in serious injury to someone, I’m pretty sure you can actually get a long a prison sentence additional to having your drivers license, but not your car, revoked… If you can’t afford the significant legal costs related to these kind of cases, I guess you may end up having to sell your vehicle to cover those costs so in that sense the answer to your question is “kind of”.

      This list of requirements the NRA prepared to ensure our due process is not violated behind enforcement of any new red flag laws at the federal level actually does not seem unreasonable. If those protections are actually included in such a law, I think the comparison between a driver who can’t control their drinking with a mentally unstable person being allowed to possess a large gun collection is not entirely unreasonable.

  • Just1Spark August 9, 2019, 2:28 pm

    This is nothing more than a ‘secret govt list’ to stifle open criticism of the govt. (Check out Secret Govt lists in history)

    You see, since the govt has successfully divided the population into at minimum of 2 different factions (repub and dem), this means that everyone will have atleast 1 member of their family/acquaintances with which they have an opposing political view.

    And the open discussion of opposing political views, will then be all but destroyed for most, for fear that their political debate will land them in the crosshairs of such law.

    And it will take no time at all for the law to become bastardized further for the allowance of ‘anonymous tips’ to initiate enforcement of said law onto innocent people.

  • oldfuzz695 August 9, 2019, 2:22 pm

    A person, a committee, an ex or a bunch of worthless politicians going to determine who is nuts?? A violent criminal is going to find a way to get around all of this. Theft, straw buyer, etc.
    Stop the endless appeals. Stop the 20-25 years on death row with a living better than most of these cockroaches ever had. Clean Sheets, 3 hots and a cot, entertainment, study law, write a book, sexual outlets??
    Only 6 years to execute Timothy McVey after he stopped all appeals. Cool

  • Fergus August 9, 2019, 12:51 pm

    Due process anyone? If Trump can’t get a fair shake from the swamp you can expect a Ruby Ridge, Waco, or worse. Remember the IRS and the Tea Party? You expect better treatment? I have seashore investment property for you in Nevada. Call me.

  • Chuck Matson August 9, 2019, 12:17 pm

    Trump just lost the next election.

    • Thomas Jefferson August 9, 2019, 6:37 pm

      Chuck,

      YOU ARE SPOT ON!!! 85-90% of Trumps base will DUMP his sorry ass if he goes along with ANY “law” that will INFRINGE upon our GOD-GIVEN RIGHTS.

      • Stir the pot August 11, 2019, 7:46 am

        Who would you vote for then? It’ll be him or kamala or biden or warren. If you vote for anyone else you might as well stay home.

  • john August 9, 2019, 12:13 pm

    Unconstitutional Official Acts * 16 Am Jur 2d, Sec 177 late 2d, Sec 256: The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be In agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows: The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it’s enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it….. A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the lend, it is superseded thereby. No one Is bound to obey an unconstitutional law and no courts are bound to enforce it. Jon Roland: Strictly speaking, an unconstitutional statute is not a “law”, and should not be called a “law”, even if it is sustained by a court, for a finding that a statute or other official act is constitutional does not make it so, or confer any authority to anyone to enforce it. All citizens and legal residents of the United States, by their presence on the territory of the United States, are subject to the militia duty, the duty of the social compact that creates the society, which requires that each, alone and in concert with others, not only obey the Constitution and constitutional official acts, but help enforce them, if necessary, at the risk of one’s life. Any unconstitutional act of an official will at least be a violation of the oath of that official to execute the duties of his office, and therefore grounds for his removal from office. No official immunity or privileges of rank or position survive the commission of unlawful acts. If it violates the rights of individuals, it is also likely to be a crime, and the militia duty obligates anyone aware of such a violation to investigate it, gather evidence for a prosecution, make an arrest, and if necessary, seek an indictment from a grand jury, and if one is obtained, prosecute the offender in a court of law.

  • jrcowboy49 August 9, 2019, 11:32 am

    Loss of liberty is the central contention against ‘red flag’ laws being enacted state by state. The law chips away at personal freedom. What the left refuses to accept is that liberty as an irrefutable right is foundational to the United States Constitution. The Constitution, so right and moral, has never stopped the left from snubbing their collective nose at yours and my freedoms. In legislative bills around the country every year, the left demonstrates that they prefer subjugation over personal liberty. California is an enduring example of citizens actually embracing subjugation by government. Imagine that.
    Nowhere is subjugation more plain than in the Democrat’s efforts to legislatively institute ‘red flag’ laws. The harsh truth is that ‘red flag’ laws are an affront to the United States Constitution.
    A citizen’s right to own and bear arms is guaranteed by the Second Amendment. The left infringes upon this basic right using the tactic of incrementalism. Each time the tactic is employed, it is accompanied by the deceitful narrative of protecting people’s lives. The left’s goal isn’t protecting lives, it is controlling lives — subjugating them. As long as Americans are armed, subjugating them requires taking the incremental road while leftists prefer the expressway. Owning a firearm is a basic right of a free society the left would prefer to see you without.
    The Second Amendment states, “the right of the people to keep and bear arms, shall not be infringed.” Look up the word infringe and you’ll find it means “to limit, undermine or encroach upon.” Yet ‘red flag’ laws do exactly that — undermine your right to keep and bear arms. Honest, decent, law-abiding people should not lose their rights because some judge thinks they might do something in the future. That’s the Soviet Union model, not the American.
    If you live in a state that has enacted a ‘red flag’ law, an individual can file an affidavit detailing reasons they believe you represent an extreme risk to yourself or society. Whether or not the accuser’s affidavit is based in truth is irrelevant. The simple act of an affidavit filed against you (without you being notified, by the way) means a judge will determine whether or not to issue an extreme risk protection order (ERPO). Never mind that the affidavit can be based on an accuser’s one-sided, possibly nefarious claims. While the law states that clear and convincing evidence must be produced, the standard for clear and convincing evidence is remarkably low. Once an ERPO is issued, law enforcement will then seize your personal property, in this case, your firearms. Under these laws, law enforcement can preemptively confiscate people’s guns simply for being considered a “threat.”
    Do you get to defend yourself against the accusation prior to your property being seized? Nope. The decision to seize your property is at the discretion of a judge who has never met you nor heard your defense. Notice the absence of something critical that every American citizen rightfully expects: due process. Due process is a right protected by the Fifth Amendment.
    The Fourth Amendment guarantees our right against unreasonable searches and seizure of property. When a person has committed no crime nor is in the process of committing a crime yet their personal property is confiscated without due process, this is the classic definition of unreasonable seizure.
    Absurdly, proponents claim ‘red flag’ laws include due process. How so when personal property has already been seized? Because “due process” lies in the Machiavellian wording of these laws. The person whose firearm has been seized may petition the court carrying the burden of proof they are not a risk. Disproving guilt is a legal standard more extraordinarily demanding than establishing guilt beyond a reasonable doubt.
    In other words, guilt is presumed and the accused must prove otherwise. What reasonable jurist who has studied law would consider presumed guilt and due process as equal? None! Yet petitioning the court after your property has been seized is the argument the left maintains when claiming ‘red flag’ laws provide due process. Honest, decent, law-abiding people should not lose their rights because some judge thinks they might do something in the future. That’s the Soviet Union model, not the American. The key, however, lies in the word, reasonable. When it comes to your constitutionally guaranteed right to own a firearm, the left is exceptionally unreasonable. Law be damned. The theory of the Constitution is we don’t punish people or take their rights away from them because of what they might do, what they could do, because of what we fear they’ll do, but only because of what they have done. It is a real Challenge on how to curb gun violence without infringing on the Second Amendment.
    In the absence of true due process, any rights you possess under the United States Constitution are subject to any manner of tyrannical legislation the left can envision.
    There’s one huge problem with the liberty-limiting edicts leftists impose. It is found in Article VI, Paragraph 2 of the Constitution. This Supremacy Clause establishes and recognizes in perpetuity that the United States Constitution supersedes all other federal, state, and local laws.
    ‘Red flag’ laws brazenly violate the Second, Fourth, and Fifth Amendments of the United States Constitution. Since the Constitution is the law of the land superseding all other laws, ‘red flag’ laws cannot and should not ever be enforced.

  • jim August 9, 2019, 9:39 am

    This will be the most abused law in the history of the US !

    • Gary August 9, 2019, 1:00 pm

      All Red Flag laws are illegal as they do not address “due Process ” as guaranteed by our Bill of Rights. The the idea of depriving US citizens of private property without a court hearing smacks of dictatorship ! Accusing a person of being a danger to the community without a court hearing goes against everything America stands for !

  • Steven Zimmerman August 9, 2019, 7:44 am

    Evil hearts kill people, not guns. Automobiles kill more people annually than guns. Red Flag automobiles and their drivers.

  • Anthony Romano August 9, 2019, 7:04 am

    So my ex-wife or neighbor or someone in my family who is anti gun thinks I’m nuts and can report me to officials? No way this is constitutional!!!

    • KimberproSS August 9, 2019, 9:34 am

      I like the NRA’s first requirement. Anyone making a false claim will be prosecuted. They also need to require anyone who makes a claim to the police must provide their personal information and contact info. No anonymous claims.

      • Winston August 9, 2019, 1:27 pm

        The law is a violation of the 4th Amend. The NRA is again showing it is part of the problem by agreeing that such a proposed law has any validity at all.

  • Jaque August 6, 2019, 8:37 pm

    Mental Health Professionals on the staff of police agencies is troublesome. Its just like Stalin and Hitler had. The courts should independently consult these professionals.

    Americans, Get ready for another leap towards a communist states of America. A joint venture by the CPUSA, DNC, and the RNC.

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