Where conventional legislation would fail to pass legal muster, new forms of gun control are taking root across the country. Much like the National Firearms Act — which levied exorbitant taxes to bar most Americans from purchasing certain guns — these new laws circumvent outright gun bans in ways that avoid traditional court battles and constitutional critiquing. They’re called red flag laws, and they’re getting more popular. Nineteen states have already passed this new type of unconstitutional gun control.
So, what are red flag laws? Aptly named, they’re designed to “flag” suspicious, potentially dangerous gun owners. At least that’s what so many states’ proposed legislation most often says to muster support. In truth, red flag laws include legalese allowing for gun confiscations and further investigation of the “flagged” individual without due process. And once a gun owner’s flagged, law enforcement gets involved quickly. They’ll demand you relinquish your firearms under threat of being imprisoned or involuntarily committed. Usually, those gun owners who’ve been flagged are required to submit to psychological tests or cross-examination by a medical professional. Many legislators and Justice department officials say these laws help to prevent gun violence from happening, and California reported a sharp increase in gun confiscations with the passage of its own red flag laws. California’s bill required anyone with a restraining order to submit their guns for confiscation.
While taking a firearm from a dangerous person sounds reasonable, the attitude of officials charged with enforcing these bills is worrying. When asked why California’s red flag laws are so effective, San Diego District Attorney Maria Elliot said quite simply, “We don’t have to wait for a crime to be committed [to confiscate guns].” Think about that for a second. A district attorney, a law enforcement official already granted incredible power, is championing search-and-seizure without any verifiable probable cause or due process, a direct violation of the Fourth Amendment. Perhaps most worrying is how the confiscation process works: Most individuals, including family members, friends, neighbors, co-workers, managers, and the general public, can report a gun owner for confiscation. Once an owner’s guns are confiscated, the burden of proof is on the owner, not the individual reporting, and not the confiscating officials. California isn’t unique in its handling of red flag laws, either. Of the nineteen states with red flag laws in place, most allow anyone to report you to the authorities for investigation.
In essence, laypeople and pedestrians (not the police, a District Attorney, or a judge) are being given judicial power over your Second Amendment rights. Even worse, this power is not being prescribed with any stringent requirements. The standard of proof required for most reporting is merely a “preponderance of the evidence”. That means whoever flagged you only has to convince the authorities that there could be a 50% or greater chance of the reported suspicion being true. It’s their word against yours, except you don’t even know you’ve been reported until it’s too late.
Imagine you work with a colleague who’s clearly anti-gun. You’re openly pro-gun and often talk with a friend in the office about your latest gun purchases. You’ve been battling with this other colleague over a promotion. At times, things have gotten heated. He or she may have said some rude things, you may have responded not too kindly. There has been tension, perhaps even aggressive words. But nothing that would suggest you’re a violent, dangerous, or mentally unwell person. Too bad, because your anti-gun co-worker just reported you as a potential threat to others under your state’s red flag law. They say you’re “incredibly aggressive and violent toward others” and you’re “always bragging about how many guns you own”. You’re home one night with your family, and the local police come knocking. You’ve done nothing wrong, but your gun safe is about to be emptied.
“That wouldn’t happen!” Most red flag supporters cry in protest. Except situations like this are already happening. Just months ago a Colorado woman was sought by police for lying when she filed a petition under the state’s new red flag law to confiscate the guns of a university police officer. The officer killed the woman’s son, Jared Holmes, two years earlier. Holmes charged the officer and other police with a bayonet after being told several times to drop the weapon. This was the first known case of Colorado’s new law being put to use by the public.
After a 2018 school shooting, Florida enacted its own version of red flag laws. Kevin Morgan’s estranged wife, Joanie, was quick to take advantage of the risk protection order she could file against her now ex-husband just six months later: Joanie Morgan claimed her husband was depressed, suicidal, obsessed with the apocalypse, and stockpiling guns and ammunition in anticipation of the end times. She claimed he talked about seeing, hearing, and wrestling demons. According to her petition, he even rubbed special oils on their children and the walls of their house. She reported Kevin was abusing prescription drugs, too. Of course, Joanie was able to obtain her temporary risk protection order which authorized authorities to seize Kevin’s guns.
When it came time for a judge to decide whether Kevin’s risk protection order and gun confiscations should be extended for a year or relinquished, the damning picture Joanie painted of him quickly disintegrated. Joanie Morgan’s testimony was tearful, highly emotional, scattered, and frequently vague. She reiterated her earlier allegations and added a few more. But when Blackstone asked whether she had any evidence to corroborate what she claimed her husband had said and done, she admitted that she did not.
There were no witnesses to confirm his alleged threats and no photographs of oil on the walls, of the hypodermic needles he allegedly had stashed away to inject succinylcholine, or of the food, weapons, and ammunition he allegedly had accumulated in preparation for the end times. Nor had police ever visited the house to confirm any of those details. Kevin Morgan’s attorney, Michael Blackstone, also noted that, despite Joanie Morgan’s portrait of her husband as dangerously deranged, she was planning to build a new house with him on property they had purchased together in April 2018, and she had left her children overnight with him that August, in the midst of his supposed breakdown, to attend a conference in Tampa.
By the time the hearing was over, the lawyer representing the local Sheriff’s office conceded he had not met the law’s standard of evidence. The judge agreed, and Kevin Morgan’s Second Amendment rights were reinstated — but not without emptying his wallet. Blackstone estimates that a single red flag case ordinarily would cost $2,500 to $5,000 in legal fees. Kevin Morgan says Blackstone, who also is handling his divorce, charged him about $1,500. That was on top of the attorney fees and extra living expenses he incurred as a result of his other legal battles with his wife. “I had about $13,000 or $14,000 in savings, and by the time all this was done, I had nothing,” he says. “I was lucky to have a lawyer. I was lucky to be able to afford it.” Florida, like nearly all of the states with red flag laws, does not provide court-appointed counsel for the accused. Colorado is the only state that guarantees a right to counsel for respondents who can’t afford a lawyer or choose not to hire one.
Red Flag gun control laws clearly do not work. Indiana and Connecticut both passed similar red flag laws. Both states allow for the reporting of gun owners who might harm themselves or others. Gun confiscations rose sharply in both states. While suicide rates with a firearm did fall slightly, overall suicide rates and violent crime didn’t budge. As researcher Aaron Kivisto said, “Taking the gun isn’t the end of the situation. It doesn’t reduce the crisis.” If taking the gun out of the equation doesn’t help, why do it?
Those who want to harm themselves or others will continue to do so. Confiscating guns may or may not help to reduce that immediate risk, but gun control does not reduce crime. Gun control without due process is even less effective and folks like the Colorado police officer and Kevin Morgan would agree. In fact, red flag laws put those they’re meant to protect in even more danger. In 2018, a man was shot and killed in his home by Maryland police attempting to confiscate his guns under the state’s new red flag laws. The man became irate and a shoot-out occurred. No officers or family members were harmed, but a law intended to save lives only resulted in one being taken, and many others needlessly endangered.
Perhaps the most worrying example of how red flag laws can be abused can be found in Connecticut. That state’s red flag laws list of reasons for gun confiscation includes simple concerns like “conflict between intimate partners, emotional distress over finances, and sadness of loss in old age.” We’re pretty sure most Americans deal with these very issues on a daily basis.
What can you do to protect yourself against this type of Fourth Amendment violation? We’re not advocating that you or anyone break the law, and we strongly advocate for seeking professional help when needed. But most of you reading this are probably level-headed gun owners. You’re a law-abiding citizen and you don’t want to get caught up in a gun confiscation because your checking account over-drafted, or because an estranged wife claimed you worship the devil. Here are some of the ways to avoid being falsely reported under a red flag law:
1. Don’t brag about your guns. They’re for you to use, and they’re no one else’s business. Besides, hanging up a picture of your favorite black rifle in your cubicle might not be taken so well by others.
2. Don’t blast gun pictures on social media. We know, Reddit has a great AR-15 channel and Facebook is addicting. But don’t throw up an album of your favorite guns for all to see. No one needs an inventory, and you don’t need to make yourself a target for thieves. We’re also willing to bet you could think of at least one incredibly anti-gun person in your friend’s list who would assume your picture of an AR-15 means you’re out for blood. Avoid giving them the excuse.
3. Record everything. If you were to be reported to authorities under a red flag law, chances are it would be petitioned by an acquaintance, partner, or colleague who has beef with you. If you feel anybody in your personal circle who’s anti-gun is working to violate your Fourth Amendment rights, record everything. Keep copies of text messages, emails, and voicemails. Where legal, record in-person conversations if they turn sour or confrontational. Contact friends and other colleagues who may serve as witnesses for testimony. This can serve as valuable evidence in a court of law.
3. Advocate against red flag laws. Most importantly, get involved. This is the most effective way to prevent yourself from getting caught up in frivolous gun control. You can easily locate your state and local representatives through the Federal House of Representatives’ website. The only way to prevent needless gun confiscation is to inform your politicians and the public about why these laws don’t work.