Biden, Red Flags, and the Constitution

Biden, Red Flags, and the Constitution

AP Photo/Marina Riker, File
President Joe Biden has done everything he can to foist gun control on the American public, whether anyone wanted it or not.

Time after time, he’s issued calls for things like assault weapon bans and magazine restrictions, to say nothing of his countless executive orders seeking to restrict our right to keep and bear arms.

One of his early EOs was an effort to use taxpayer money to push for red flag laws in various states. He knew he couldn’t get it through Congress, but he wanted to get as many state legislatures as possible to make it happen.

Mark Chesnut, writing at America’s 1st Freedom, has some thoughts on the constitutionality of red flag laws, however.

As we’ve chronicled before, rather than infringing only on the citizenry’s Second Amendment rights with proposals, such as “universal” background checks or “assault-weapons” bans, so-called “red-flag” laws infringe upon Second Amendment rights and the Fourth Amendment’s right to due process under the law. Red-flag laws typically permit the government to seize a person’s firearms and to thereby, at least temporarily, take away a person’s Second Amendment rights. Due process, as in an actual court hearing, perhaps comes later, if at all.

The first time a person finds out that he or she is the subject of such an order might be when law enforcement shows up at their front door to confiscate their firearms. Even if the person later has an opportunity (this is often a very expensive option) to tell their side of the story at a court hearing, the damage to a citizen’s rights and reputation is done the moment the guns are removed.

At this point, Chesnut isn’t saying anything we haven’t written a few thousand times ourselves.

Red flag laws aren’t just a Second Amendment issue, but a due process issue as well. People’s rights are stripped from them without a judge ever having laid eyes on the individual and there’s no opportunity for one to defend themselves from such an attack.

Not until afterward, anyway, and by then, at least some of the damage is done.

But we also live in a post-Bruen landscape, and that’s what drew my attention today.

As the NRA Institute for Legislative Action has noted in the past, aside from due-process concerns, the U.S. Supreme Court decision in the 2022 case New York State Rifle & Pistol Association v. Bruen strongly “suggests that ‘red-flag’ gun-confiscation orders are unconstitutional solely on Second Amendment grounds.”

Justice Clarence Thomas’ opinion declared that, in order for a firearm regulation to pass constitutional muster, it must fit within the text, history and tradition of the Second Amendment right. Specifically, the opinion noted that “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified’ command.”

That poses an obvious problem for the constitutionality of red-flag laws. Unfortunately for lawful American gun owners, the president hasn’t shied away from his gun-control schemes just because they might be unconstitutional.

No, he hasn’t.

Yet Chesnut brings up a very good point about the odds of these laws surviving post-Bruen scrutiny.

Once, they might have made it on the grounds that the government’s interest was sufficient to override the due process or Second Amendment concerns, but now that doesn’t fly with gun cases. You have to show that there’s some historical analog for disarming someone over a third party’s suspicion that they might be dangerous.

I don’t think you’re going to find one.

What matters now is challenging the law under Second Amendment grounds so that the court has to consider the Bruen decision. Granted, depending on the court, they might just opt to ignore it entirely, but then it goes up the food chain and gets squashed there.

The truth of the matter is that the Constitution doesn’t include any provision that rights can be stripped away from someone because they’re scary, and that’s really what red flag laws seek to do.

May their stay in this nation be brief.