Ahead of the one year anniversary of the tragic shooting at Marjory Stoneman Douglas High School in Parkland, Florida, Sen. Marco Rubio (R-FL) on Thursday re-introduced the "Extreme Risk Protection Order and Violence Prevention Act," commonly referred to as "red flag laws."
“A gun violence restraining order is one of the most effective policies we can put in place to prevent another tragedy like Parkland,” Rubio said in a statement. “We can help keep our schools and communities safe by empowering law enforcement or family members to use the judicial system to keep guns out of the hands of dangerous individuals. This idea has already proven successful in states like Florida, and it is my hope that this bill will get other states to do the same thing.”
According to Rubio's team, here's what the bill will do:
- Creates an Extreme Risk Protection Order Grant Program at the Department of Justice
- Makes states enacting qualifying laws eligible for funding to help implement such laws, as well as priority consideration for Bureau of Justice Assistance discretionary grants.
- Requires that a qualifying state law be in compliance with the minimum requirements described in the act, including:
- Providing a process where a law enforcement officer or family member of an individual can petition for – and after notice and hearing, a court can grant – an Extreme Risk Protection Order if the court finds by clear and convincing evidence that such individual poses a significant danger of causing personal injury to himself/herself or others by possessing or purchasing a firearm.
- The duration of such order may not exceed 12 months but may be renewed upon a showing of clear and convincing evidence it remains warranted.
- Respondent has the right to request a hearing to vacate an order or renewal.
- Providing a process where a Temporary Ex Parte Extreme Risk Protection Order can be issued if a court finds probable cause to believe that an individual poses a significant danger of causing personal injury to himself or herself or others in the near future by possessing or purchasing a firearm.
- Establishing a felony criminal offense for knowingly making a false statement relating to an Extreme Risk Protection Order regarding a material matter.
- Requiring clear processes and instructions for the surrender of a respondent’s firearms should an Extreme Risk Protection Order be issued, as well as clear processes and instructions for the swift return of such firearms upon expiration or successful motion to vacate an order.
- Requiring that an issuance of an Extreme Risk Protection Order be reported to the appropriate federal, state, and tribal databases.
Gun Owners of America, the National Shooting Sports Foundation and the National Rifle Association have voiced concerns over red flag laws. The main concern is the potential for a lack of due process. While Rubio's previous piece of legislation required a court hearing within 14 days of being petitioned, there's no appeals process. Once a person is deemed unfit, their Second Amendment rights can – and will – be revoked.
The other issue is the abuse factor. There's nothing that keeps people from abusing this system. Here's an example:
A man is an avid Second Amendment supporter, enjoys going to the range and is a concealed carrier. He decides the relationship with his girlfriend is no longer working out so he breaks up with her. She's upset about the breakup. To get back at him, she petitions the court utilizing red flag laws (assuming they're already in place). Her claim is he's mentally unfit to own a firearm. She decides to lie and say he's threatened her and has stocked up on ammunition. The court would, more than likely, decide he is a threat. That means they'd revoke his access to firearms. There's nothing that would prevent the ex-girlfriend from making these false claims. And there's no way for him to refute the claim.
See the problem?
The lack of due process and the instantaneous decision is what Second Amendment advocates are, rightfully, worried about.
Sens. Jack Reed (D-RI), Angus King (I-ME), and Susan Collins (R-ME) are all co-sponsors. Rubio introduced the same legislation last March in the previous Congress.
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