The 5th Amendment of the United States (US) Constitutions says that, “No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Red flag laws do just that, they allow someone else to petition the court to have your firearms taken away from you. In some states, you don’t have a chance to be heard by the court before your firearms are confiscated by the State. But in all States, your firearms can be confiscated, temporarily, without you ever being convicted of a crime.

The 2nd Amendment provides for, “the right of the people to keep and bear arms.” The Supreme Court of the United States (SCOTUS) has held in D.C. v Heller (2008) that the individual right to own and possess a firearm in the home was not linked to service in a militia. Separately, SCOTUS held in McDonald v. City of Chicago (2010) that the Bill of Rights, which protects rights fundamentally American, applies to both the State and Federal governments.

What does that mean? From the perspective of the 2nd Amendment, it means that you cannot be denied access to a firearm by the State or Federal governments, if you have not been convicted of a disqualifying criminal offense or been adjudicated mentally defunct.

This is where red flag laws break down. These laws allow for the State to deprive you of your enumerated, Constitutional right without due process of law. The order to confiscate your firearms must be adjudicated by the courts, but that is not the same as due process of law. You have not been charged with any crime, yet you are being denied your property. This is not a power that was afforded to the government at founding and is not a power we should consider allowing our government to have.

In the US, we already have criminal threat laws. As it stands, it is illegal to make threats of physical harm. Threats seem to be the basis of the red flag laws. If someone seems to be a threat to themselves or others the court can authorize the State to remove their firearms. This appears to be an end run around criminal threat laws. It seems that the more appropriate course of action should be charging the person with making threats and let the courts determine if the offense rises to criminality.

Red flag laws make it too easy to remove a person’s firearms. There is no real consequence to the State because the State does not have to criminally convict anyone, so there is no concern for imprisoning an innocent person. It is much easier to, “justify,” taking the person’s firearms than to imprison them. That is not a power the government should have as it pertains to the rights of citizens. It should be difficult for the State or Federal governments to take the life, liberty, or property of the citizens.