It never ceases to amaze me how far gun-control advocates will stretch an idea to undermine Second Amendment rights.
On May 22, 2023, Michigan Gov. Gretchen Whitmer (D) signed legislation authorizing extreme risk-protection orders, better known as “red-flag” gun-confiscation orders, in the Great Lakes State. As with other states’ red-flag laws, Michigan’s allows government officials and others to petition a court to suspend a person’s Second Amendment rights and to order the seizure of the person’s guns, despite that person never having been charged with or convicted of a crime. Such orders may also be issued before the gun owner is provided the opportunity to be heard or to present evidence.
The fact that a person’s firearms can be seized merely on another’s say-so is bad enough.
In March, however, The Detroit News ran an article chronicling the first year of Michigan’s gun-confiscation law. Some of the findings were downright shocking.
Case in point is how red-flag orders have targeted young kids, who are themselves already legally ineligible to acquire firearms, to disarm their entire families. The piece explained:
“Michigan’s red flag law has been used … within the K-12 school system, including cases in which guns have been seized from homes because elementary-age children were deemed a threat to themselves or others, according to state records,” the article noted. It went on to point out that a “6-year-old appears to be the youngest individual subjected” to a red-flag order and that the “next youngest child was an 8-year-old.”
As a practical matter, a reasonable person might wonder how the judicial system provides meaningful due process to a 6-year-old subject to civil process. As a political matter, some might find it curious that the same politicians who targeted grade schoolers with red-flag laws raised the age of criminal responsibility from 17 to 18 in 2019.
The Detroit News report, moreover, indicated this application of the law was by design. It stated: “Michigan’s red flag law, one lawmaker said, is unique from other states because it specifically addresses situations involving minors and allows officers to confiscate unsecured firearms from parents or guardians even though the actual order is in the child’s name.” According to state Sen. Mallory McMorrow, “That aspect, particularly related to juveniles, was something we were very intentional about.”
The news about red-flag laws, fortunately, is not all bad.
First is the U.S. Supreme Court’s ruling in NYSRPA v. Bruen (2022), which occurred well after the national experiment with extreme risk-protection orders had begun. That opinion made clear that a firearm regulation must be “consistent with the Nation’s historical tradition of firearm regulation” to pass constitutional muster.
Good luck finding a tradition that bears any similarity to what is happening to these kids (and their families) in Michigan.
Then, on Feb. 7, President Trump signed an executive order to protect Second Amendment rights that called upon Attorney General Pam Bondi to “assess any ongoing infringements” perpetrated by the federal government.
That potentially implicated a provision of 2022’s ill-named Bipartisan Safer Communities Act (BSCA), which authorized funding for red-flag regimes under the heading of “state crisis intervention programs.” At the time, a BSCA proponent claimed the bill contained language ensuring that tax dollars couldn’t fund state red-flag laws without “strict and comprehensive due process protections.” The Biden-Harris administration, however, ignored these requirements to funnel money to states authorizing the issuance of “emergency” orders with no input from the accused at all. Moreover, that same administration used public funds to bankroll a national red-flag clearinghouse to promote these laws within the states.
Illegal spending that tramples upon constitutional rights should be an easy target for the attorney general’s review.
Then there is Florida.
In March, pro-Second Amendment Gov. Ron DeSantis (R) made clear it’s time to revisit the Sunshine State’s gun-confiscation law.
During his State of the State speech, the governor emphasized the Second Amendment and pointed to the red-flag law as an area of concern. Following the speech, DeSantis noted, “That’s not the way due process works.” Providing a much-needed civics lesson to the assembled journalists, DeSantis went on to explain how deprivations of rights are supposed to work under the Constitution, stating “the burden’s always on the government. Yet they’ve shifted the burden for doing that … It’s a huge due-process violation.”
Michigan’s red-flag law may exemplify the worst excesses of anti-gun officials, but recent inroads in the federal courts, in the federal executive branch and in Florida demonstrate that determined gun-rights supporters can fight back on this defining issue.
