While Joe Biden’s anti-gun legislative agenda has stalled out in Congress, the gun control lobby is still looking for ways to infringe on the rights of gun owners, and one of their latest poison pills can be found in this year’s National Defense Authorization Act. On today’s Bearing Arms’ Cam & Co we’re highlighting what Gun Owners of America is calling a “red flag” gun confiscation provision in the NDAA, and why it must be stripped out of the legislation before a vote is cast.
The military version of the red flag law proposed by Democrats looks a lot like the civilian version found in more than a dozen states. Without being charged or even accused of a crime, a service member could have their right to possess a firearm taken away from them by a military court, and the subject of the red flag order wouldn’t even have a chance to provide any evidence on their behalf for up to 30 days after the court’s order was issued. The authors of the measure audaciously state that this is “sufficient to protect the respondent’s due process rights,” but I doubt many service members would agree.
As well as the obvious concerns over the constitutionality of this proposal, there are fundamental flaws with the measure itself. Just like with the red flag laws in place in states from California to Connecticut, if a person is found (through a lowered standard of review than what is used in a criminal proceeding) to be a danger to themselves or others by a judge, there’s no actual mental health component to the order removing guns. A supposedly dangerous person can be left with knives, pills, poison, gasoline and matches, and any other tool they might use to take their own life or the lives of others as long as any legally-owned guns are taken away. Every state (and the military as well) already have civil commitment laws on the books, and they’re the most appropriate tool to deal with individuals who are truly in the midst of a mental health crisis.
I also have questions about representation in the red flag language included in the NDAA. In states with red flag laws on the books, petitions are handled in civil, not criminal court. That means that those who can’t afford an attorney don’t have access to a public defender, even though the petitions are handled by a local prosecutor. It’s hard to deny that this puts lower-income defendants at a decided disadvantage, so how would this work in the case of a military red flag petition?
The language of the NDAA also leaves many of details up to the discretion of the president, which means that Joe Biden’s anti-gun allies would really be the ones who’d flesh out the process. That’s one reason why GOA is sounding the alarm.
Gun Owners of America (GOA), a pro-Second Amendment gun rights advocacy group, warned the military gun confiscation orders could provide lawmakers with a precedent to extend the rule to the general population.
“Like the proverbial camel’s nose in the tent, allowing this provision to remain in a bill pertaining to the military will eventually work its way into legislation applying to the rest of the population,” GOA wrote. “That’s why we need to raise our voices in unison against these gun confiscation orders.”
The only saving grace is that at the moment it’s unclear whether the Democrats can pass anything out of Congress, but with the NDAA a “must pass” piece of legislation, the odds are much higher that they’ll eventually be able to get something done. It’s critical that any type of “red flag” provision is removed from the final version of the defense spending bill, not only because it sets a precedent for a federal ERPO law targeting civilians, but because our service members shouldn’t be subjected to an ineffective and unconstitutional policy like this to begin with.