Conservative activists in Nevada have filed a legal challenged to the state’s “red flag” firearms seizure law, which is set to take effect on January 1st. NevadaCAN, a “citizens action network” in the state, says the new law is unconstitutional, violating both the Second and Fourth Amendment rights of gun owners in the state.
“The Red Flag provision violates both the Constitution of the United States and the Nevada State Constitution by giving judges the power to take away an individual’s right to keep and bear arms based on the accusation that the individual is dangerous and should not have a firearm,” said Julie Chen Hereford, co-plaintiff in the suit. The suit contends that a Supreme Court of Nevada decision issued in September 2019 invalidates the “red flag” provision in the new law.
That state Supreme Court decision the lawsuit mentions actually could have a big impact on the enforcement of “red flag” orders requiring legally owned firearms be seized when a judge finds that the subject of an “extreme risk protection order” poses a danger to themselves or others.
In Anderson v. Eighth Judicial District Court Nevada’s high court determined that misdemeanor domestic violence cases have to be decided in a jury trial, as opposed to the much more common practice of having a judge decide the outcome of the case without the involvement of a jury.
The state Supreme Court ruled that because a conviction on misdemeanor domestic violence charges results in the loss of the right to keep and bear arms, defendants have a right to a jury trial. In the lawsuit filed challenging the state’s new “red flag” law, the plaintiffs argue that the decision means judges alone can’t sign off on an extreme risk protection order, since that too involves the loss of the right to legally own firearms. From TheHill.com:
“The Red Flag provision violates both the Constitution of the United States and the Nevada State Constitution by giving judges the power to take away an individual’s right to keep and bear arms based on the accusation that the individual is dangerous and should not have a firearm,” Julie Chen Hereford, the suit’s co-plaintiff, said in a statement.
Fellow co-plaintiff Mary Rooney added: “A person accused of being a danger may not even be aware of the court action against him, and his guns can be forcibly taken by law enforcement and his premises searched. Due process never enters into it.”
With the law scheduled to take effect in just a few weeks, NevadaCAN is asking a judge to grant a temporary injunction preventing enforcement of the law while the court challenge proceeds.