Since his inauguration in January 2021, President Joe Biden (D) has constantly pushed a long list of restrictive gun-control schemes that would curtail the rights of lawful gun owners while doing nothing to reduce violent crime or target the criminals committing those crimes. When it comes to his zeal for various proposals, there are few that he has embraced more fully, or frequently, than so-called “red-flag” laws.
In April 2021, just three months after taking office, Biden signed an executive order directing the U.S. Department of Justice (DOJ) to publish, within 60 days, model red-flag legislation that the White House said would “make it easier for states to pass their own versions of the law.” In addition, in a speech outlining that executive action, the president called for a federal red-flag law, which he hasn’t yet been able to push through Congress.
Since then, the administration’s drumbeat promoting these laws has been relentless. When Biden’s White House Office of Gun Violence Prevention, a new gun-ban wing of the administration formed last year, hosted nearly 100 Democrats from 39 states in late 2023, they encouraged them to pass more-restrictive firearms measures; indeed, “red-flag” laws, also called Extreme Risk Protection Orders (ERPO), were a focal point of the agenda.
More recently, in March, Biden doubled down on “red-flag” laws in a big way when his DOJ created a brand-new National Extreme Risk Protection Order Resource Center. Appearing at a March 23 press event at Marjory Stoneman Douglas High School in Parkland, Fla., Vice President Kamala Harris (D) announced the creation of a “resource center,” which will be funded by taxpayers—many of them gun owners who could fall prey to such laws—to the tune of $750 million.
“Red-flag laws are simply designed to allow communities a vehicle through which they can share, and have somewhere to share it, information about the concern about the potential danger or the crying out for help of an individual and then let’s give it to them before tragedy occurs,” said Harris at the gathering. “Part of why I am here today is to challenge every state to pass a red-flag law.”
According to a DOJ press release, the “resource center,” which will be managed by the DOJ’s Bureau of Justice Assistance (BJA), will “provide training and technical assistance to law enforcement officials, prosecutors, attorneys, judges, clinicians, victim service and social service providers, community organizations and behavioral health professionals responsible for implementing laws designed to keep guns out of the hands of people who pose a threat to themselves or others.”
As we’ve chronicled before, rather than infringing only on the citizenry’s Second Amendment rights with proposals, such as “universal” background checks or “assault-weapons” bans, so-called “red-flag” laws infringe upon Second Amendment rights and the Fourth Amendment’s right to due process under the law. Red-flag laws typically permit the government to seize a person’s firearms and to thereby, at least temporarily, take away a person’s Second Amendment rights. Due process, as in an actual court hearing, perhaps comes later, if at all.
The first time a person finds out that he or she is the subject of such an order might be when law enforcement shows up at their front door to confiscate their firearms. Even if the person later has an opportunity (this is often a very expensive option) to tell their side of the story at a court hearing, the damage to a citizen’s rights and reputation is done the moment the guns are removed.
The Supreme Court’s Bruen decision suggests that “red-flag” laws are unconstitutional.
As the NRA Institute for Legislative Action has noted in the past, aside from due-process concerns, the U.S. Supreme Court decision in the 2022 case New York State Rifle & Pistol Association v. Bruen strongly “suggests that ‘red-flag’ gun-confiscation orders are unconstitutional solely on Second Amendment grounds.”
Justice Clarence Thomas’ opinion declared that, in order for a firearm regulation to pass constitutional muster, it must fit within the text, history and tradition of the Second Amendment right. Specifically, the opinion noted that “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified’ command.”
That poses an obvious problem for the constitutionality of red-flag laws. Unfortunately for lawful American gun owners, the president hasn’t shied away from his gun-control schemes just because they might be unconstitutional.
Indeed, “red-flag” laws can even empower activists to disarm citizens. These laws often allow police, health practitioners, family members and—in some cases—even teachers and community members, to petition courts to suspend an individual’s Second Amendment rights and to order the seizure of otherwise lawfully owned guns.
Basically, many of these laws allow for “ex parte” emergency orders that authorize firearm seizures before the respondent even has an opportunity to answer the petitioner’s allegations. Those allegations, moreover, do not have to assert illegal activity, just vague concerns of the potential for future dangerousness. Such allegations, then, could simply be based on the fears or biases of an individual who is opposed to the Second Amendment-protected rights of other citizens.
This isn’t speculation. Across the states, untold thousands of guns have been seized under these regimes from owners who did not stand accused, much less convicted, of any crime. And at least one fatality has occurred during the execution of a “red-flag” order when the respondent allegedly brandished his gun in the presence of officers serving the order.
On the other hand, the typical red-flag law provides no mechanisms for the stabilization or incapacitation of the supposedly dangerous individual, other than firearm prohibitions and seizures. Respondents may be otherwise left to their own devices and, indeed, left in possession of other types of weapons or means of committing lethal harm. The point—the entire point of politicians like Biden—is ensuring respondents cannot exercise the right to keep and bear firearms.
