The loss of your Second Amendment rights is just one bad ruling away.
Everyone has heard of the Left’s push to ban so-called “assault weapons” and restrict magazine capacities in the name of “safety.” But Big Government liberals already have the power to strip away your Second Amendment rights under the suspicion that you may commit a crime in the future.
Thanks to red flag laws, which allow civil courts to issue warrants for seizure of all firearms and ammunition owned or otherwise possessed by a respondent, judges across 21 states and the District of Columbia may take away your right to acquire and bear arms—if another person targets you with a red flag petition and convinces the government you’re a danger. These warrants go by different names, but are most commonly known as Extreme Risk Protection Orders (ERPOs).
These laws are well intentioned in theory but open the door for possible injustice. They are designed to stop mass shootings and suicides by allowing concerned parties to petition a judge to restrict firearm access in certain cases.
Though proactive in theory, these laws are unconstitutional, and depending on the state, allow doctors, educators, family members, guardians, romantic partners, and spouses to petition the court to take away your Second Amendment rights.
Good Intent. Bad Idea.
Red Flag laws were marketed to legislatures as an easy solution to mass shootings and rising gun suicides. But they demand the impossible of judges and law enforcement: Predicting future crimes.
Preventing crime from happening in the first place sounds great, but the means violate the Constitution on multiple counts—mere suspicion shouldn’t justify the abrogation of one’s Second Amendment rights—even assuming that future crimes can be predicted in the first place.
“The problem with [red flag laws] is that you’re trying to predict the future, and you just can’t do that. We don’t live in a society where we punish people based on actions they may take at some unknown point in time, if ever,” Second Amendment Foundation (SAF) executive director Adam Kraut told Restoration News.
“We live in a society where laws exist to do one or two things: Either deter conduct or punish conduct after it occurs. That is it, plain and simple,” he continued.
Red flag laws generally leave the accused defenseless, as the “trial” takes place in civil court with no court-appointed attorney present. In many states, false petitioners are not charged, and in some cases, are subject to protections enforced by the state that shield petitioners from being sued for false claims. This leaves no deterrent for false accusers.
Red flag laws are described as well-intentioned but inevitably strip away your rights before a trial date is even set; thus, they have been coined the modern day Salem Witch Trials for gun owners exercising their constitutional rights.
“Shall Not Be Infringed”
The Left may celebrate red flag laws as “common sense” measures, but they clearly violate the Second Amendment.
In 2021, the U.S. Supreme Court ruled in New York State Rifle & Pistol Association, Inc. v. Bruen that any firearms regulation must have a historical analogue, preferably from the time of the founding, in order to survive challenge. The Bruen decision revolutionized the way courts view Second Amendment cases and sent many existing laws into question.
Red flag laws do not pass the Bruen test because they do not have a historical tradition in peacetime America.
“Go back to the time of the founding, there was nothing analogous to red flag laws in the civilian, peacetime context. Red flag laws effectuate a wholesale ban on firearms and ammunition possession without any criminal charges. This is a very new phenomenon,” said attorney Edward Paltzik of Bochner PLLC and the National Constitutional Law Union, who has called red flag laws insidious and unconstitutional.
“The only context where it happened during or before the Founding Era was in the military and wartime context,” he continued.
Indeed, during the Revolutionary War, colonies confiscated firearms from British loyalists in order to neutralize them and arm patriots. The British, in turn, confiscated colonial firearms in order to prevent uprisings and hamper the patriot war effort. But we should not be subjected to wartime measures for invoking the Constitution.
Fourth Amendment Violation
Red flag laws vary by state, but 6 of the 22 jurisdictions have severe Fourth Amendment violations on top of Second Amendment violations. These states allow warrants to issue on grounds that are lower than “probable cause.”
The Fourth Amendment explicitly states that no warrant shall be issued except upon probable cause. In place of probable cause, these six states have opted into using lesser standards, such as “reasonable grounds” or “good cause.”
“I find it hard to believe that this has actually happened and that lawmakers allowed this to happen,” Paltzik said. “To get a warrant, the government must show probable cause, that there’s an actual violation of a law that has occurred or is imminently going to occur. It’s not enough to just say, hey, this guy is dangerous. Confiscating firearms because an individual is “dangerous” is no different than seizing that individual’s bank account because he is “dishonest.”
Reasonable grounds and good cause are far below the requirements of probable cause, and more analogous to “reasonable suspicion.”
“The main difference between probable cause and reasonable suspicion is that probable cause means there is concrete evidence of a crime and that any reasonable person might suspect criminal activity,” according to the law office of James R. Snell, Jr.
Maryland’s Willey Case
In August 2023, the Second Amendment Foundation and one of its members, Donald S. Willey, a 64-year-old Marine Corps veteran, filed a lawsuit in United States District Court challenging Maryland’s red flag laws. Willey was allegedly harassed, stripped of his gun rights, and forced to undergo a mental health exam after the local zoning director filed a false ERPO (red flag) petition against him, according to the lawsuit.
The plaintiffs allege that over the last two decades Maryland authorities, specifically Dorchester County Planning and Zoning Director Susan E. Webb, have harassed Willey over minor zoning infractions, an alleged illegal business on his property, leaving his yard in poor condition, and creating an unpermitted disturbance.
This year, a Dorchester County inspector entered Willey’s property to conduct a compliance inspection and Webb later issued new notices for Willey to make improvements. A few days later, Webb and another inspector showed up to Willey’s property without notice and allegedly stapled the notice to a fiberglass boat cover causing extensive damage.
Webb eventually filed an allegedly perjured petition for an ERPO alleging Willey threatened her – of which he “steadfastly” denies, according to a release. The Dorchester County Sheriff seized Willey’s firearms and ammunition, and he was forced to undertake a “humiliating” and involuntary mental health evaluation, all based on Webb’s claims.
“This is the sort of nonsense we have repeatedly warned about,” said SAF founder and executive vice president Alan M. Gottlieb. “These so-called ‘red flag laws’ can be abused and weaponized against private citizens who have done nothing wrong. It is an outrage.”
Capture the (Red) Flag
After SAF filed a lawsuit against Maryland in the Willey case, the group announced a “Capture the Flag” campaign that will focus on the six states that do not require probable cause for red flag laws, as well as the twelve states that allow judges to consider recent acquisitions of firearms or ammunition as a factor in favor of confiscating firearms or ammunition. Four states have red flag laws that suffer from both defects.
“SAF’s ‘Capture the Flag’ initiative looks to challenge these laws that deprive individuals of their right to keep and bear arms, where appropriate, based on evidentiary standards that are constitutionally impermissible,” explained Adam Kraut.
The campaign will focus on California, Florida, Maryland, Massachusetts, New Jersey, and Washington.
“SAF has been concerned about these statutes since they first started showing up,” noted Gottlieb. “We have already taken legal action against officials in Maryland for an egregious abuse of the law against a citizen in Dorchester County.
“These laws should raise alarms because they prioritize citizen disarmament ahead of due process, and that can easily lead to deprivation of rights under color of law,” he continued.
Popularized and Heavily Funded
Following the horrific deaths of 14 students and 3 teachers at Marjory Stoneman Douglas High School in 2018, red flag laws entered the mainstream, going from merely 6 states to 22 states in 5 years.
On the five-year anniversary of the shooting, President Joe Biden pledged $231 million to states for crisis intervention projects including red flag laws. The subsidy pulls from $750 million in funding from the Bipartisan Safer Communities Act, which Biden signed into law in June 2022.
The act provides funding for red flag laws and other mental health needs but creates a litany of issues, including disproportionately increasing the chance of incarceration for black youth, according to the center-left Center for Law and Social Policy.
The center argues that it increases police presence in schools, exposes private info such as health records to police officers, allegedly reinforces racial bias, and offers ineffective approaches to reducing gun violence.
The Left Will Continue to Push
Red flag laws are described as proactive measures that can prevent mass shootings; however, they fail to perform an impossible function while simultaneously violating multiple portions of the Constitution.
They should not be backed by states and the federal government should not be pouring hundreds of millions of dollars of taxpayer funds into an unconstitutional measure.
The Left will continue to normalize sensational laws in the name of safety until Americans decide to stand up for the Constitution. Red flag laws are “Orwellian” in nature and open the door for numerous injustices against law-abiding Americans.
After all, this isn’t Minority Report. The enforcement of just laws, that fit within the confines of the Constitution and reality, remains a key component to ensuring peace, freedom, and prosperity in America.