Red Flag Laws – What Are They and What Do They Do?

Red Flag Laws – What Are They and What Do They Do?

Emergency Risk Protection Orders (ERPOs) also known as Red Flag Laws now exist in 13 states with more in the works.  By now I’m sure you have heard of them and perhaps are somewhat aware of what that phrase means. However, do you know how they can affect you and what they might mean to your constitutional rights?

As women, I think this is an important issue and one I find myself discussing with many women. We too often see in the news a horrific story of a woman with an Order of Protection murdered at the hands of the abusive ex or stalker. Only to reinforce the reality that “It is just a piece of paper.”  We are mothers of children that we drop off at school each morning with the ever-present fear of “What if a crazy man or student guns down my child.” Our collective hearts ache with the desire to prevent guns from being in the hands of those who wish to do us harm. We all cry out  “make it stop!” Are Red Flag laws the answer?

What Is A Fed Flag Law?

By definition,  a “Red Flag” law or Extreme Risk Protection Order (ERPO) is a legal measure that allows family members, guardians, law enforcement officials or others to seek a court order to restrict someone’s access to firearms or to confiscate owned guns if they are showing signs (Red Flags) that they are a potential danger to themselves or to others.

Red Flag Laws

 

Of course, NO ONE wants a firearm in the hands of anyone who is a danger to themselves or to others. However, a foundation of our constitutional freedoms is due process of law. We all must demand that all laws are applied fairly to all people in all situations. Everyone’s constitutional rights must always be protected. Yes, even when addressing highly emotional issues and what perhaps may be rightly intended legislation.

 

In Indiana a similar law allows for police to seize firearms from a “dangerous individual” and then seek approval from a court after the fact. (Ind. Code Section 35-47-14-3.)

In this example, the legislation doesn’t require a warrant or judge’s signature before the confiscation of firearms from individuals.

Some Serious Questions

  • Who then makes the determination that the request for intervention is valid?
  • What are the criteria for determining what a warning sign is?
  • Who decides that the reported warning sign is a valid indication that they’re a danger to themselves or others?
  • What if a family member or co-worker doesn’t agree that individuals should own guns and has an unrelated motivation for revenge?
  • Can they call law enforcement and make a false accusation against them saying they’re showing “red flags?”

What about those citizens who inevitably are wrongly identified?

  • How, when, and by what process will their firearms be returned?
  • How, when, and by what process will their Second Amendment right to purchase a firearm be restored?
  • What are the implications for their ability to fly with a gun or have a concealed carry permit? Will they have to ‘pass’ a test or evaluation to no longer be deemed dangerous to have their gun rights restored?

It’s uncertain how this type of legislation will affect those involved and honestly, these issues should have been and must be addressed before any law is imposed on any U.S. citizen.

For those correctly identified as a danger, perhaps an ERPO would save lives. Maybe we would have something stronger than a piece of paper when living under the threat of violence by an ex or a stalker. Perhaps even feel a little less anxious sending our children off to school.  But are we as a nation willing to lay down our right to due process, the foundation of our constitutional freedoms,  at the altar of government? Can we accept the precedent and consequences that the elimination of due process in this circumstance will create?  Likely, we also open doors for more gun-control legislation when this fails to stop every crime.

Too Many Questions

As you can see by all of the question marks in this article, there are far too many unanswered questions for these laws to be in place or to be passed. The application and assurance that due process is guaranteed must be in place before any legislation is considered, yet alone passed. There has already been numerous cases where the use of these Emergency Risk Protection Orders have had flawed and even tragic outcomes. Here are just two:

NJ Cops Came to Confiscate Guns After Son Discussed School Safety

Police Fatally Shoot Maryland Man While Serving Red Flag Order

The Second Amendment states, “…the right of the people to keep and bear Arms, shall not be infringed.” People who have not been convicted of a crime, or diagnosed as having a mental illness would have their rights unfairly stripped from them. Fortunately, we have the NRA on the front lines fighting to right the wrongs inherent in these laws. There are rumors and falsehoods regarding the NRA’s role and stance on this issue. I have recently spent the week with NRA and NRA-ILA leadership. I have received updates and discussed this very issue and can assure you, our Second Amendment and due process rights are being fought for.

You can read the NRA position here. (Scroll to find the tab on ERPO’s).



3 responses to “Red Flag Laws – What Are They and What Do They Do?”

  1. My opinion , until and unless a crime has been committed the government must abide by the #2A !! I think it all comes back to family, we have to be responsible to and for our own. Government once given the chance to come in and take ( or as they like to say ” remove”)weapons without your #5A Due Process , will go to the extreme , it happens all the time , we’ve all seen it ! My Mother used to say ” Give them the little finger and they’ll take the whole hand ” !!
    There are to many ifs , ands or buts. Most mental illnesses do not cause a person to be violent and to seize their weapons without due process would be a fail on our part !!

  2. As you stated, “The Second Amendment states, “…the right of the people to keep and bear Arms, shall not be infringed.” ” Furthermore, “Due Process is a Constitutional right that comes from the 5th and 14th amendments. The 5th Amendment Due Process Clause applies to the federal government while the 14th Amendment applies to state and local government.” (from BING Search). Its simple verbiage.

    Red Flag laws can be unconstitutional if not properly implemented; i.e., the accused receives his/her day in court and either meeting or not meeting the criteria. However, this Red Flag law should serve for only a duration – as in the case of spousal intimidation the majority of people eventually come to their senses and resume ‘adulting’ in its proper form. Second, having both a paternal/maternal family dynamic who, individually, practice grudge holding would be classic candidates for false red flag allegations. This behavior should be encased with severe penalties and punishments – in my humble opinion. Cliche coming: Nip it in the bud

    However, those determined mentally unfit [at the time] to possess a firearm later on, I’m still on the fence. The Constitution protects their rights too, but does the burden of ‘fitness’ fall on the individual or law enforcement [ie, public policy] when reinstating gun rights/possession? What if the person’s mental state relapses? As the NRA article (above) states, due process no matter what keeps our country free. So if those living with intermittent mental health issues, fitness to retain their rights and physical possession will be substantiated on a case by case bases.

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