Extreme risk protection orders, gun violence restraining orders, or, as they’re increasingly being known, “red flag” laws are now in place in 14 states and under consideration at the federal level. The problem with every one of these laws is that they violate the due process rights of the person targeted by the order. They’re another step in slow-motion confiscation, based on nothing more than a suspicion.
Little certainty is needed. Some states allow initial confiscations on just a “reasonable suspicion,” which is little more than a guess or a hunch. Others at least mandate “probable cause” that the individual is dangerous. These standards allow a judge to take away a person’s right to self-defense when there is significantly less than 50 percent chance of something bad happening.
Only one state’s law mentions mental illness. The individuals who are identifying who they think are dangerous do so on an “I will know it when I see it” standard. In practice, a person’s criminal history, gender and age help decide who is a danger. But we already have laws that say felons, even non-violent ones, can’t own guns.
Even misdemeanor violations can cost you your right to own a gun. Gun control advocates want to take firearms away from people arrested but not convicted of crimes. Their unwillingness to make that explicit indicates that they are afraid that courts would strike down such laws.
It has always been possible to take away someone’s guns, but all 50 states have required testimony by a mental health expert before a judge. Hearings could be conducted very quickly in urgent cases, But gun control advocates argue that it’s important to not even alert the person that his guns may be taken away. Hence, the 5 a.m. police raids.
– John Lott in The folly of ‘Red Flag’ gun laws