Two States Seeking a Ban on Red Flag Law Enforcement

Oklahoma Senator Nathan Dahm

Oklahoma state Sen. Nathan Dahm, R-Broken Arrow (AP Photo/Sue Ogrocki)

By John Hanna, AP

Republicans in two Midwestern states where GOP-controlled legislatures have gun-rights majorities are proposing measures aimed at preventing the U.S. government or other states from taking guns away from residents whom the courts deem a danger to themselves.

Neither Oklahoma nor Kansas has “red flag” laws through which relatives or police can obtain a court order to remove firearms from someone’s possession. However, the proposals in those states also would prevent local city and county governments from enacting such laws. They would even go so far as to make it a felony for someone to help enforce such an order.

Sponsors said they were inspired by prospects that Congress might enact such a law or offer federal grants to entice states into putting them on the books.

Supporters of red flag laws say they reduce suicides and gun violence and lessen the risk of mass shootings. Gun-rights supporters contend they violate not only the right to own firearms but other constitutional guarantees, such as the right to due legal process, to confront an accuser, and against unreasonable searches and seizures of property.

“There’s numerous violations of the Bill of Rights taking place by these red flags laws,” Tulsa-area Republican state Sen. Nathan Dahm, who is sponsoring Oklahoma’s measure.

Seventeen states and the District of Columbia have some sort of red flag law, with most enacting them starting in 2018, according groups favoring them and other gun-control measures. Interest in Congress appeared to grow after mass shootings in Dayton, Ohio, and El Paso, Texas.

Dahm filed his proposal in September, and it may have been the first of its kind. In Kansas, separate but identical measures were introduced in December by members of the state House and Senate. The two states’ legislatures would consider them after convening their annual sessions next year.

All three measures declare that any gun-removal order from another state or a federal court are null and void, and no state or local agency could accept federal grants that require such orders to be enforced.

The U.S. Constitution prevents states from nullifying federal laws.

“States generally do not have the ability to tell the federal government, ‘Get out of our state and stop enforcing your laws,’” said Kansas Attorney General Derek Schmidt, a Republican gun-rights supporters who’s not taking a position on the measures. “But states do generally have the ability to tell the federal government, ‘You are not able to commandeer state resources and compel us to enforce your laws.'”

Kansas state Rep. Stephanie Clayton, a Kansas City-area Democrat, called the proposals “disturbing” and said they show how extreme gun-rights backers have become in opposing any restrictions over the past decade. She said she wonders whether the proposals are a “publicity stunt” because they’re going beyond trying to block red flag laws.

“It’s a completely different thing to aggressively criminalize something that is intended to minimize death by suicide and murder,” Clayton said. “The last time I checked, murder is bad and so is suicide.”

The Washington-based, nonprofit Brady campaign against gun violence equates red flag measures with laws states have in place to combat domestic violence. Such laws allow abuse victims to get temporary court orders to keep alleged abusers away from them at least until a judge can review their cases.

Christian Heyne, Brady’s vice president of policy, said people generally have to be “an acute risk” to themselves or others to have their guns removed temporarily. He said such laws targeted people “at the highest risk” of suicide or violent behavior.

“Firearms can do damage that knives cannot do,” added Jonathan Lowy, Brady’s chief counsel and legal affairs vice president. “Suicide is another area where the science is clear, that suicide attempts with firearms are much more successful than other means.”

While the Brady campaign and other supporters of red flag laws say they have due-legal-process protections built in, Dahm and other critics argue that they’re open to abuse.

Kansas state Sen. Richard Hilderbrand, a southeast Kansas Republican sponsoring one of his state’s measures, said red-flag laws set the wrong target, “one tool” for someone bent on violence.

“The gun isn’t what caused that mass shooting. That was the instrument that was used,” Hilderbrand said. “The hate in that person’s heart is what caused it, so until we start addressing that, you know, we’re just going down these rabbit holes that lead to nowhere.”

comments

  1. avatar Stateisevil says:

    Amazing to see the divergence of the 2 party system. A Florida Republican vs a Kansas Republican are as different as a Florida Republican politician and a New York Demonrat politician.

    1. avatar FedUp says:

      That’s because a single (if we count man and wife as one) anti gun Republican donor has purchased every cheap whore in the FLGOP, which is apparently nearly every FLGOP politician other than the current Governor, including both the US Senators.

      And by cheap whores, I mean it appears this couple bought the state of Florida for less than Soros spent on this year’s Virginia State’s Attorney (county prosecutor) campaigns.

  2. avatar GS650G says:

    Should democrats once again completely control federal government red flag laws will lead to protective custody laws.
    We know what that entails.

  3. avatar Shire-man says:

    It’s like the 2nd and 4th Amendments never existed at all.
    Somebody should stand up in front of their legislators holding up the BoR and ask:
    “dafuq is this then?”

    1. avatar I Haz A Question says:

      Remember when Newt Gingrich told the American People back in the mid-’90s that he and many other Republicans took their jobs seriously (since they were opposing Bill Clinton’s efforts from the White House), and carried small copies of the Constitution in their pockets with them every day?

      It didn’t last long, but it started a movement, and today Congress begins each session by vocally reading the entire Constitution (complete all Amendments) at the podium on Day One. If you pay attention, you’ll see (on C-SPAN) who’s taking the words to heart as they’re being read out loud, and who’s completely ignoring the whole affair and taking a nap, or not even present.

      1. avatar Geoff "I'm getting too old for this shit" PR says:

        And ESP tells me who blows off the reading…

  4. avatar Vlad Tepes says:

    When you think about it a properly written red flag law is actually a bonus for gun owners, not a detriment, because a court order would have to be issued and a legal way to recover the guns. Now compare this to what has previously been going on with the Cops. Cops as far back as I can remember in the 1950’s did indeed confiscate guns on trumped up charges and with no court orders and trying to get your guns back often entailed getting an expensive lawyer and waiting a year or more for a court case. Often the price of your guns was way less than hiring the usually parasite crooked lawyer to work for you.

    1. avatar Vlad's Fan Club says:

      Tell us more, Vlad! Give us your wisdom!

    2. avatar Kendahl says:

      The problem is that well written red flag laws don’t exist. A well written one would include these provisions:

      The subject would be granted a court hearing within 24 hours on demand. He could be represented by a lawyer. The complainant, the officers involved in the confiscation and any witnesses must appear to face cross examination.

      The confiscating agency would be responsible for maintenance of the firearms. They would be liable for damage regardless of cost.

      Anyone making a false claim would have criminal and civil liability.

      1. avatar rt66paul says:

        And they can pay for the flagee’s attorney.

      2. avatar Sam Hill says:

        This is what a well written red flag law would say……………. See 2cnd amendment BoR period.

    3. avatar Amir Timur "Tamerlane" says:

      Cool story bro.

      Dumb question: If someone can’t be “trusted” to own firearms because they’re too “dangerous”, why are they not considered too dangerous to be free among us in society?

      Due Process is defined by Black’s Law Dictionary as: “That no person shall be deprived of life. liberty, property or of any right granted him by statute, unless matter involved first shall have been adjudicated against him upon trial conducted according to established rules regulating judicial proceedings, and it forbids condemnation without a hearing. Pettit v. Penn, La.App., 180 So.2d 66, 69.”

      So based on this, and the fact that the onus of Due Process, the requirement therein specifically outlined in the 4th, 5th and 14th Amendments, a *trial* is Constitutionally required before anyone can be deprived of life, liberty or property.

      Combine that with the 2nd Amendment, explicitly forbidding the infringement of the people keeping and baring arms, and also realizing that the Bill of Rights isn’t granting us any rights, but instead recognizing them as innate, natural rights and are simply written as an established bulwark against governmental infringement upon them.


      Then again, rights don’t matter if it’s for the sake of safety, right? Even words can easily incite violence, so we should get rid of that pesky 1st Amendment while we’re at it. People should only be allowed to say pre-approved statements of well-wishes and absolute governmental support.

      1. avatar Vlad Tepes says:

        The Right can yammer about the Constitution but that is not reality its pure fantasy and always has been. In Capitalvania you are guilty until proven innocent and that is not being facetious its cold hard fact.

  5. avatar Matt in Oklahoma says:

    We don’t want them and we don’t need them. This here ain’t vaginia, commiefornia nor Kolorado

  6. avatar Matt in Oklahoma says:

    Weird I thought all the “experts” on here would be singing praises for our states doing the right thing. I guess it’s only negative comment experts round here on TTAG.
    Sure shows the wheat from the chaff

    1. avatar Matt in Oklahoma says:

      Yeah that’s what I figured. 200 positive comments on Puerto Rico and nothing for America.
      Negative nellies, trolls and bots

  7. avatar Hannibal says:

    Political posturing. Wasting time and resources on a state law that won’t do anything in response to a federal law that doesn’t exist.

  8. avatar Alan says:

    A most interesting, and in my opinion much worthwhile proposal. Question is will it become law in these states, and in others too?

  9. avatar cowboybob says:

    I think it is amazing how many liberals around here actually think that because they pass some kind of legislation requiring us to turn in our guns, that we will all march to and comply. This is the furthest thing from the truth. Red flag laws have not been challenged and when they are, they will be ruled unconstitutional unless there is due process provisions added. In reality the pols pushing this crap might find themselves looking down the wrong end of a barrel.

  10. avatar Mark says:

    Federal Law overrules state law? Talk to Thomas Jefferson and James Madison about the Virginia and Kentucky Resolutions.

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