Heritage President: Red-Flag Laws Must Have Constitutional Guardrails, Protect Due Process

Heritage President: Red-Flag Laws Must Have Constitutional Guardrails, Protect Due Process

Jun 13, 2022 2 min read

WASHINGTON—Heritage Foundation President Kevin Roberts released the following statement today following reports that senators have reached agreement on a framework for new gun-control legislation that includes U.S. taxpayer dollars being used to set up state red-flag laws:

“The right to keep and bear arms is a sacred, fundamental right protected by the Second Amendment. Poorly crafted red-flag laws pose a serious threat to our exercise of this right.

“This is especially true when it comes to federal red-flag laws. Washington is not practically equipped or constitutionally empowered to handle matters of state or local law enforcement, making any federal red-flag laws or guidelines completely unacceptable. So is offering states grants to set up their own programs, if they do so based on new, federal guidelines—in other words, bribing states to adopt red-flag laws based on guidelines deemed acceptable by D.C. bureaucrats more interested in confiscating guns than solving problems.

“The Senate’s reported framework does just that.

“Any deprivation of an American citizen’s Second Amendment rights—even temporarily or for compelling reasons—requires the most stringent of constitutional guardrails and highest standards of due process. If we are to have any new red-flag laws at all, they must begin and end with the states. If states do move forward with such laws, they must adhere to rigorous constitutional safeguards and account for detailed practical considerations.

“Members of Congress should focus on making our schools more secure, strengthening mental health infrastructure, and promoting the nuclear family. Instead, Washington is in ‘do something’ mode that doubles down on a misguided federal approach. According to Heritage analysis, of the more than 20 red-flag laws on the books, not one of them passes constitutional muster.”

At a minimum, states should ensure any red-flag laws include the following constitutional and practical safeguards: 

  • Robust due process standards, including the right to an attorney in court proceedings, the ability to cross-examine witnesses, and opportunity to testify on one’s own behalf.
  • Burden of proof on the state to continually prove its case by clear and convincing evidence. Incredibly low burdens of proof like ‘reasonable’ or ‘probable cause’ are insufficient.
  • Limited emergency orders to stop serious threats of imminent harm.
  • Clear and specific methods for notifying defendants of the allegations and their rights.
  • Procedures for storing and returning seized firearms.
  • Processes for immediately remedying clear mistakes.
  • Policies to promptly restore a person’s Second Amendment rights after orders expire.