Explore The NRA Universe Of Websites

APPEARS IN News

“Fact Checker:” Forcible Removal of Guns Before their Owner Has a Chance to Make His Case in Court is not “Confiscat[ion] of Firearms Without Due Process”

Monday, November 7, 2022

“Fact Checker:” Forcible Removal of Guns Before their Owner Has a Chance to Make His Case in Court is not “Confiscat[ion] of Firearms Without Due Process”

It’s election time, and supposedly “independent fact-checkers” are again bending the truth to support a political agenda. This time they are contorting evidence and linguistics to insist it is “mostly false” that “red flag laws” allow the government “to confiscate your firearms without due process.”

For some time now, the NRA has been warning of the problems, fallacies, and dangers of so-called “red flag laws,” including here, here, and here.

Our basic points are simple.

First, the laws are not likely to be effective in promoting safety, because they focus solely on an allegedly dangerous person’s access to firearms, without actually preventing the person from causing harm by other means or addressing the underlying causes of dangerousness.

Second, they incorrectly assume judges can discern who – among non-prohibited people who have not been previously convicted of disqualifying crimes or subjected to disqualifying commitments or adjudications – will behave dangerously in the future.

Third, and perhaps most importantly, they intrude on fundamental liberties, including by empowering a judge or magistrate to order the seizure of a person’s lawfully-owned and constitutionally protected firearms before the person has even been given a chance to tell his or her side of the story.

The more people become aware of what red flag laws actually do, in fact, the less they support them. Recent research showed “58% of people support red flag laws when told the ‘primary purpose is to allow judges to take away a person’s gun based on a single complaint when there is a concern about that individual committing suicide.’” Yet that same researched showed when “respondents were told there are no hearings where a defendant presents their case to a judge before their gun rights are taken away and mental health experts are not involved in the process, the 58% support drops down to 30% with 47% opposing.”

It is therefore imperative for proponents of red flag laws to suppress information about how they actually work in order to gain majority support for them.

And when it comes to suppressing information of all sorts, “fact checkers” are ironically among the worst offenders.

It would be one thing if “fact checkers” merely rendered opinions that could be exposed to public scrutiny and evaluated on their own merits.

But the real purpose of a “fact check” is to allow political bias to pass as established truth, so it can be used to discredit and censor differing opinions. This is most evident when social media platforms append “fact checks” to statements they don’t want users to believe and/or use them as a pretext to downgrade the prevalence or accessibility of those statements on the platform.

Not coincidentally, with an important election looming, Politifact is trying to make sure one anti-gun governor’s support of red flag laws is whitewashed of its endorsement of heavy-handed tactics to disarm law-abiding gun owners.

The NRA has been running a radio ad in Wisconsin that states Democrat Gov. Tony Evers would “allow the government to use red-flag laws to confiscate your firearms without due process.” Last week Politifact published a “fact check” that rated this statement “mostly false.”

In their article, Politifact admitted that Evers proposed a red flag law in Wisconsin, and the article even linked to the bill’s text. Like most existing red flag regimes, that bill contemplated a two-stage process.

In the first stage, a judge or circuit court commissioner “shall issue a temporary restraining order prohibiting the respondent from possessing a firearm and ordering the respondent to surrender all of the firearms in the respondent’s possession if the judge or circuit court commissioner finds reasonable grounds that the respondent is substantially likely to injure the respondent or another person if the respondent possesses a firearm.” The bill’s language makes clear the respondent does not have to be present for this order to be issued or even to have been aware of (much less answered) the petition requesting the order. 

If the sheriff personally serves the respondent with the preliminary order, the sheriff shall “require the respondent to immediately surrender all firearms in the respondent’s possession.” The bill additionally makes clear that if service is affected by means other than personal delivery of the order by the sheriff, a search and seizure warrant may be issued if a law enforcement officer “has probable cause to believe the respondent possesses a firearm” in violation of the order.

Only after this first stage, authorizing the forcible removal of firearms from the respondent, is a hearing required to be held at which the respondent may rebut the accusations against him. The hearing is supposed to be scheduled within 14 days after issuance of the preliminary surrender/seizure order, but the time may be extended in certain circumstances.

The Politifact article basically acknowledges all of this. It even goes on to state: “The NRA has a point in that the gun owner is not involved from the beginning ….”

Nevertheless, Politifact claims the statement in the NRA’s ad is “mostly false” because it suggests “there is no judicial process at all.”

But that’s not true. The ad speaks of a lack of “due process.” It says nothing about “judicial process” or whether a judge is involved. The U.S. Supreme Court has found a number of court procedures lacking in “due process,” even though they involved some level of judicial involvement (see, for example, the 1979 case Addington v. Texas). The two things are not the same.

The Politifact article cites no NRA source for the claim that the bill Evers supported lacked “judicial process.” Instead, it cites statements Wisconsin Assembly Speaker Robin Vos made in responding to the bill Evers supported and Politifact’s own prior “fact check” of Vos’ claim.

Yet there is nothing in either fact check that ties Vos’s statement about judicial involvement in the process to the NRA. Rather, Politifict is simply muddying the waters about an NRA statement by invoking the statement of someone else who was not speaking on the NRA’s behalf. That alone is strongly indicative that the Politifact article is straining to discredit the NRA.

Politifact also faults the NRA for referring to a “temporary seizure” (in their words) as “confiscation.” In fact, dictonary.com defines “confiscate” as (among other things) “to seize by or as if by authority,” exactly as the Evers-supported bill would allow.

Finally, the Politifact article claims the NRA is wrong that red flag laws violate due process because “such laws in other states have been upheld as constitutional on both Second Amendment and due process ground.” It cites only specific example, however, an appellate court case upholding Florida’s version of the “red flag” concept.

Of course, the fact that individual state courts may have upheld specific state laws against specific constitutional challenges does not resolve all questions about whether other such laws or specific applications of those laws are also constitutional. Importantly, the U.S. Supreme Court has not weighed in on any constitutional challenge to a red flag law. And given that court’s recent ruling in NYSRPA v. Bruen -- which requires gun control laws to have a historical pedigree dating back to the 18th or 19th Century to survive Second Amendment scrutiny – it is certainly questionable whether red flag laws would pass muster. Even their supporters have referred to the concept as “new” and “innovative.” 

Furthermore, the NRA is not the only organization that has raised concerns about whether “red flag laws” comport with the U.S. Constitution. Similar arguments have been made, for example, by the President of the New York State Bar Association and even a state affiliate of the American Civil Liberties Union.

In summary, Politifact uses a strawman argument, linguistic cherry-picking, and exaggerated claims about judicial precedent to makes its case against the NRA. We therefore rate its rating “mostly political” and “hardly factual.”

TRENDING NOW
Major Digital Currency’s Terms of Use Prohibit Firearm and Ammunition Sales

News  

Monday, October 20, 2025

Major Digital Currency’s Terms of Use Prohibit Firearm and Ammunition Sales

So much of the energy surrounding the digital currency space has been aimed at bringing forth a new liberty. 

David Hogg: “The Grift that Keeps on Grifting”

News  

Monday, October 20, 2025

David Hogg: “The Grift that Keeps on Grifting”

At this point, anybody who reads NRA-ILA’s Grassroots Alerts even sporadically is well aware of the shameless, anti-gun self-promoter David Hogg. 

Urban Crime Spike “the Most Overlooked U.S. Crime Story in Recent Years”

News  

Monday, October 20, 2025

Urban Crime Spike “the Most Overlooked U.S. Crime Story in Recent Years”

It was a standard talking point of the Biden White House that violent crime had dropped by record levels under the Biden-Harris administration, attributed in part to its support of gun control measures.

First Affirmative Lawsuit in Support of Gun Owners Filed by Trump’s DOJ

News  

Monday, October 6, 2025

First Affirmative Lawsuit in Support of Gun Owners Filed by Trump’s DOJ

California officials’ egregious foot-dragging over the issuance of carry permits has finally attracted the ire of the federal Department of Justice (DOJ). 

NRA Files Lawsuit Challenging California’s Glock Ban

Monday, October 13, 2025

NRA Files Lawsuit Challenging California’s Glock Ban

Today, the National Rifle Association—along with Firearms Policy Coalition, Second Amendment Foundation, Poway Weapons & Gear, and two NRA members—filed a lawsuit challenging California’s Glock ban.

North Carolina: Update on Permitless Carry

Tuesday, September 30, 2025

North Carolina: Update on Permitless Carry

Last week the North Carolina General Assembly briefly returned from recess and re-referred Senate Bill 50, Freedom to Carry NC, to the House Rules Committee.

California: Governor Newsom Signs Gun Control Bills Into Law

Monday, October 13, 2025

California: Governor Newsom Signs Gun Control Bills Into Law

For someone who has claimed to be"...deeply mindful and respectful of the Second Amendment and people’s Constitutional rights,” Governor Gavin Newsom has once again proven that actions speak louder than words.

Colorado Joins States in Promoting Use of Red Flag Laws

News  

Monday, October 20, 2025

Colorado Joins States in Promoting Use of Red Flag Laws

First there were the red flag laws themselves, dangerous laws allowing for the seizure of firearms while bypassing a citizen’s right to due process. 

FBI Persists in Underreporting Armed Citizen Defensive Gun Use

News  

Monday, October 13, 2025

FBI Persists in Underreporting Armed Citizen Defensive Gun Use

Three years ago, Dr. John Lott of the Crime Prevention Research Center (CPRC), writing for RealClearInvestigations, described how the Federal Bureau of Investigation (FBI) was vastly undercounting, “by an order of more than three the number of instances in ...

NRA Files Another Lawsuit Challenging the National Firearms Act

Thursday, October 9, 2025

NRA Files Another Lawsuit Challenging the National Firearms Act

Today, the National Rifle Association—along with the American Suppressor Association, Firearms Policy Coalition, and Second Amendment Foundation—announced the filing of another lawsuit challenging the constitutionality of the National Firearms Act of 1934 (NFA).

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.