Back in March, NRA-ILA alerted members that under the 2022 omnibus federal gun control bill (dubbed the Bipartisan Safer Communities Act or BSCA) that the U.S. taxpayer is funding state Red Flag gun confiscation orders. On July 25, a group of federal lawmakers led by Sen. Roger Marshall (R-Kans.) and Rep. Alex Mooney (R-W.V.) sent a letter to the U.S. Department of Justice demanding answers on how federal resources are being used to advance state Red Flag schemes.
The BSCA, in part, provided grant funding through DOJ’s Byrne State Crisis Intervention Program (SCIP) for states to implement “extreme risk protection order” laws – better known as Red Flag gun confiscation orders. Currently, twenty-one states and Washington, D.C., have Red Flag laws on their books – while a host of pro-gun states, citing due process concerns, have outright rejected the concept.
During the BSCA negotiations, some supporters of the bill contended that to be eligible for the grant funding, state Red Flag programs would be required to meet “strict” due process requirements. BSCA proponent Sen. John Cornyn (R-Texas) published an item on his Senate website that claimed, “[t]his bill would force states with red flag laws to adopt strict and comprehensive due process protections before they qualify for the grant funding.”
The text of the legislation included the following language limiting Red Flag program eligibility:
(iv) extreme risk protection order programs, which must include, at a minimum--
(I) pre-deprivation and post-deprivation due process rights that prevent any violation or infringement of the Constitution of the United States, including but not limited to the Bill of Rights, and the substantive or procedural due process rights guaranteed under the Fifth and Fourteenth Amendments to the Constitution of the United States, as applied to the States, and as interpreted by State courts and United States courts (including the Supreme Court of the United States). Such programs must include, at the appropriate phase to prevent any violation of constitutional rights, at minimum, notice, the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses;
As evidenced by the DOJ’s grant awards, the department appears to take the position that the existing state Red Flag laws meet the BSCA’s due process requirements, rendering this language effectively null. Despite the explicit language requiring pre-deprivation due process, grants are being given to states with ex parte Red Flag procedures. Under an ex parte Red Flag regime, the government can seize a person’s firearms and extinguish their Second Amendment rights without prior notice and a hearing for the person to rebut the allegations against them.
In their letter, the lawmakers pointed out that “[t]he Department of Justice appears to have weaponized the Bipartisan Safer Communities Act to illegally fund ineligible ‘red flag’ laws.” The letter explained that “every ‘red flag’ gun confiscation law in this nation lacks sufficient and constitutional due process protections for gun owners,” and that the minimum due process protections demanded by the BSCA “are not in effect in a single state’s existing ‘red flag’ law statutes.” Further, the lawmakers noted that, contrary to Sen. Cornyn’s professed intention, “[s]ince the passage of the Bipartisan Safer Communities Act, no states have revised their statutes to comply with the ‘due process’ requirements imposed by the 117th Congress.”
The lawmakers also addressed the threat of BSCA SCIP funding being used to bribe states into enacting Red Flag legislation. This is a legitimate concern, and something that gun owners and elected representatives must remain vigilant to prevent.
However, the BSCA’s language does make clear that states may access these funds for programs that have nothing to do with gun control. The relevant statue (34 U.S.C. § 10152), makes clear that the SCIP funds can be used for the,
(I) Implementation of State crisis intervention court proceedings and related programs or initiatives, including but not limited to--
(i) mental health courts;
(ii) drug courts;
(iii) veterans courts
As noted, misuse of these funds is a serious concern. However, to the extent pro-gun jurisdictions apply and receive SCIP funding for legitimate non-gun control purposes, they can ensure that the available funds are not used for carrying out unconstitutional Red Flag gun confiscation schemes.
For instance, Montana’s grant award makes clear that the state will not use its nearly $1.4 million SCIP funding to pursue gun control. The award states, “Montana has no Extreme Risk Protection Order (ERPO) laws in place therefore, it is not anticipated the CIAB will pursue any types of ERPO programs.” The Treasure State award makes clear that the focus of its SCIP funding will be on “[s]pecialized court-based programs such as drug, mental health, and veterans’ treatment courts.”
Sen. Marshall and Rep. Mooney requested that the DOJ respond to their concerns no later than August 18. NRA-ILA eagerly awaits the department’s response.
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