On September 7th2018, a bill that should be considered a huge threat to gun rights and due process was introduced to the U.S. House of Representatives by New York Republican John Katko. H.R. 6747, or the “Protecting our Communities and Rights Act of 2018” states that its purpose is, “to provide states with funding to establish new tools to prevent suicide and violence, and for other purposes.” In short, the bill seeks to bribe the states with grant money should they enact so-called “red flag laws” in accordance with guidelines put forward in the bill.
Extreme Risk Protection Orders
Those who are able to petition a state court for an extreme risk protection order under Section 2 are law enforcement officers or “family members,” which includes “someone who a person cohabits or has cohabitated with in the past 12 months” in the bill’s definition. Section 3 goes into specific detail about what should be included in a state’s extreme risk protection order law, and specifies that general concerns are not sufficient to petition the court, though no specific definition is given as to what concerns are sufficient.
It continues to provide guidelines for a Preliminary Ex Parte Extreme Risk Protection Order where the accused (or “respondent” per the bill’s language) is not required to be present in court during the proceedings, nor is his representation. It is important to note is that the burden of proof used is “a preponderance of evidence,” which is a specific legal term that allows the accused to be found guilty if the evidence brought against him proves there is a better than 50% chance of guilt. For comparison, the burden of proof for criminal trials of “beyond a reasonable doubt” can be thought of having a 99% chance of guilt. Section 3 also requires that whoever applies for an extreme risk protection order be examined under oath as well as provide a signed affidavit that describes the reasons for the application of the order. Preliminary extreme risk protection orders as defined in the bill shall last no longer than 21 days.
Section 3 then continues to lay out the hearing process for a permanent extreme risk protection order. No longer than 14 days after the issuance of the preliminary order the court must hold a hearing to determine if a permanent order shall be issued. Unlike the preliminary hearing, the hearing for the permanent order allows for the accused to be present as well as cross examine witnesses from the petitioner and provide their own witnesses. Permanent orders have a higher burden of proof in that they require “clear and convincing evidence,” a burden of proof more stringent than a “preponderance of evidence” but still less than “beyond a reasonable doubt” (about 70-75% likelihood of guilt). Recipients of an order also must be notified of the hearing unlike under the circumstances of the preliminary order.
The bill allows for the recipient of a permanent order to petition for the order to be rescinded, and within 14 days a hearing will be held in which the burden of proof that the recipient is not a threat is a “preponderance of the evidence.” If an order is rescinded the court may also require that before the previous recipient of an order may receive his firearms again, that a NICS background check be processed. Family members or law enforcement have the ability to petition the issuing court for a renewal for no longer than one year, and may renew it up to three times. Finally the bill goes on to explain the process by which grant money shall be given to states that choose to enact policy according to the guidelines in H.R 6747.
Federal Bribery of the States
As mentioned earlier, the purpose of H.R 6747 is to provide the states with money should they decide to implement extreme risk protection order legislation as outlined in the bill. While it is specified in Section 4 that, “Funds awarded under this section may be used by a State to assist law enforcement agencies or the courts of the State in carrying out the provisions of the State legislation described in section 3”, there is virtually no limit placed on how much money may be appropriated to each state in order to enact these policies, nor is there hard language that funds must only be used for those purposes.
Due to the low burden of proof required for a preliminary order as laid out in the bill, there is a risk that false accusations may be easily weaponized. Combine this with the fact that the bill allows for people with whom the recipient of an order cohabits, or has cohabited with in the past 12 months, to file for an extreme risk protection order, the possibility of petty accusations from ex-roommates or romantic relationships is conceivable, if not likely.
Extreme Risk Protection Orders and the Parkland Shooting
Extreme risk protection orders have been particularly popular on the left as well as with some Republicans since the Parkland shooting. Those who advocate for extreme risk protection orders have claimed that seeing as the Parkland shooter exhibited signs of mental instability, and a proclivity towards violent behavior, that if authorities had been allowed to confiscate his firearms it is possible that the shooting would not have occurred. It is understandable that people are outraged that nothing was done about the Parkland shooter, but time and time again, desperation for something to be done can have dire consequences for liberty. The 1934 National Firearms Act, which was sold as a solution to mob violence during the prohibition era, is a great example of this.
President Trump, who was expected by many to be a savior of sorts to the pro-gun cause, post-Parkland even made an infamous statement that at least rhetorically expressed his support for red flag laws, when he advocated for taking the guns from someone perceived to be a risk before giving them their right to due process under the law. This is rooted in the same knee jerk desire to do anything at all, “as long as it just saves one child.” Fundamentally, the state has no right to deprive a citizen of his rights when they have not committed a criminal act. Red flag laws seek to disregard this by making Minority Report a documentary instead of a fictional motion picture.
Call your Congressman today, tomorrow, and every day telling them to oppose this legislation. President Trump has already signed one gun control bill into law with the Fix NICS Act, and he would likely sign this bill as well. To find your Congressman's contact info, click the link here and enter your zip code. These are the first steps to defeating this atrocity.