Are Red Flag Laws Unconstitutional?

  • Guns
red flag laws are unconstitutional

Red flag laws are unconstitutional and ought to be rolled back at the state level and stopped at the federal level.

What Are Red Flag Laws?

Red flag laws allow courts to issue orders to temporarily confiscate firearms from an individual that is believed to be a threat to themselves or others. Red flag orders can (depending on the state) be requested by family members, teachers, or law enforcement officers. As of April 2021, seventeen states and the District of Columbia have implemented red flag laws.

How Do Red Flag Laws Work?

While the process can vary state-to-state, the key elements are similar everywhere. Once an order is requested and evidence presented by the person requesting, the court can issue a confiscation order ex parte, which means without notice to the firearm owner. Law enforcement can move immediately to execute the order and seize the guns.

The ex parte order is temporary. Exact timing depends on the state, but an official hearing must be held within a certain time period in order to issue a final order. At that hearing, the person whose firearms have been taken has the right to appear in court and offer testimony on their own behalf.

Why Are Red Flag Laws Unconstitutional?

The concept of red flag laws, while presumably well-intentioned, violates the right to procedural due process contained in the Fifth and Fourteenth Amendments as well as the right to keep and bear arms contained in the Second Amendment.

Americans have a right to due process. Red flag laws flip that right on its head. With nothing but a few words from a teacher or cop, the government can unilaterally seize legally acquired, legally possessed firearms from a law-abiding citizen without notice. One day, a police officer could show up at any gun owner’s door with a slip of paper signed by a judge and take their weapons. No trial, no hearing, no lawyers, no testimony. Instead, the government takes your guns, and then you have to go beg for them back. Individuals who have their property seized via red flag laws must wait for the court to schedule an official hearing, hire lawyers, pay court fees, and travel to a state courthouse in order to retrieve it. Yet, even if one manages to jump through the procedural hurdles and finds themselves in court, the natural burden of proof is flipped. A law-abiding gun owner who has had their firearms taken must prove to the court that they are not a danger, rather than the other way around. Presumption of innocence is part of the bedrock of the due process guaranteed by the U.S. Constitution and red flag laws completely circumvent it. The burden of proof is on the accuser, not the accused.

Naturally, red flag laws also raise serious Second Amendment concerns as well. The right to keep and bear arms shall not be infringed. Yet, allowing the state to bust down citizens’ doors and take their arms without due process is clear infringement. What good is the right to keep arms if they can be taken away without any notice?

Are Red Flag Laws Federal?

Not yet. For the moment, red flag laws are confined to the states, though the federal government has begun to get involved. On April 8, President Biden directed the DOJ to release example red flag legislation that states can copy and also called upon Congress to pass a federal version.

How To Stop Red Flag Laws

States should reject any pending red flag legislation and begin to repeal it in places where it has already been implemented. Laws that do not pass constitutional muster ought not to be allowed to remain on the books. The rights guaranteed to Americans are immensely important, and it is the duty of legislators everywhere to protect them. Red flag laws, though they address important issues, violate fundamental liberties at every turn. Seizure of guns without due process is wrong and ignores both the spirit and the letter of supreme law of the land. States must not give their freedom away. The federal government, too, must reject calls for red flag laws and resist the push to implement them federally. Liberty, once restricted, is seldom returned.

For other unsettling forms of state liberty violations, see our articles on eminent domain abuse, civil asset forfeiture, and vaccine passports.