Red Flag Laws Are Unconstitutional

The Legislators are introducing legislation called “Red Flag” Laws that will allow the courts to confiscate guns from American citizens.  The way red flag laws work is by allowing a household member or a police officer to file a petition with the court to obtain a temporary firearms confiscation order from a judge in an ex parte hearing for an individual they deem a “significant risk”. An ex parte hearing is conducted with the individual in question absent while evidence is presented against them. In the case of red flag laws, the individual the petition is filed against is called a respondent and the respondent is only informed of the petition against them once the temporary confiscation order is carried out. The respondent is then allowed to defend themselves in a hearing. Assuming the individual is successful the order will be reascended and the firearms will be returned. However, if they fail to mount a significant defense then order stands for a year. This effectively allows the state in question to confiscate firearms without due process of law.

There are several facets of these laws that should give citizens pause. These laws shift the burden of proof away from the courts to the individual. In essence, the respondent must prove to the judge that they are not a “significant risk” without having the benefit of being able to cross-examine witnesses brought against them, review the evidence in the petition or confront their accuser. The police immediately confiscate the firearms once the petition is granted by the judge, so the individual’s property is confiscated without due process of law. Then there is the issue of the judge arbitrating whether an individual is mentally competent to own a firearm. Judges are not mental health professionals and do not possess the requisite skills to assess the mental health of an individual. There is also not a requirement in these laws that would require an individual to get the mental health treatment they need or a means for them to do it.

Supporters of red flag laws are positioning these laws as a viable solution to preventing mentally ill individuals from hurting American citizens while doing nothing to address the mental health crisis in America. In the meantime, these laws allow the courts to violate individuals’ 2nd, 5th, and 6th amendment rights in the name of security. Compare the Respondent’s constitutional rights with the judicial process that red flag laws establish. You have a petitioner that makes an accusation in an ex parte hearing. The respondent is not present during the ex parte hearing on the petition and the evidence is reviewed without their knowledge. This is a clear violation of the 6th amendment to the Constitution, which guarantees you the ability to confront your accuser and evaluate evidence brought against you. Then if the judge grants the order the guns are immediately confiscated by the police with the individual being informed through a ” temporary” gun confiscation order. Since the petition hearing and the gun confiscation happens prior to the respondent being notified due process did not occur. This violates both the 2nd and 5th amendments respectively by allowing police to confiscate property without being formally charged with a crime.

Allowing the government to further encroach on Americans’ natural rights is not the way that we should deal with mass-shootings. Mass-Shootings are a byproduct of the failure of the U. S government to enact comprehensive mental health reform. If we as a nation address the mental health crisis then by default mass-shootings will decrease as these individuals who fall through the cracks get the mental healthcare they need.