Are Red Flag Laws Constitutional?

[ActionJackson]

Under the Bruen decision the Supreme Court ruled that for a restriction to be valid, it had to have a historical analog or example. Something similar enough to be used as a basis for modern restrictions.

That seemed simple enough. If they didn’t have a restriction at the time the Second was ratified you can’t have it now.

Supreme Court upholds law barring domestic abusers from owning guns in major Second Amendment ruling | CNN Politics

The Supreme Court upheld a federal law Friday that bars guns for domestic abusers, rejecting an argument pressed by gun rights groups that the prohibition violated the Second Amendment.

amp.cnn.com

I’ve read the actual decision. Both Bruen and this one.

https://www.supremecourt.gov/opinions/23pdf/22-915_8o6b.pdf

And now the Supremes have decided some regulations and restrictions that didn’t exist at the time of the second are fine. As long as they comply with the principles of the founders. And those principles appear to include restricting firearms from someone who authorities believe have a good chance of using firearms to harm another.

In this case, someone who was subject of a Domestic Violence restraining order.

My first thought was that was certainly not the principles I had learned about History. I always admit I could be wrong. But in this case, I don’t think so.

My second thought was that the principle that the Supremes say exists to justify the constitutionality of the Domestic Violence restriction, is the same one people use to justify Red Flag laws.

So I wonder, using the Rahimi decision, if Red Flag Laws would be ruled as Constitutional?

Red flag laws are wholly unconstitutional. They literally allow for government overreach and suggest that a man is guilty until he can prove his innocence.

 

[C_Clayton_Jones]

I know what the law means. I'm saying there is way too much focus on gun control and seizure and nearly nothing about addressing root cause which is mentally ill people.

If Republicans are serious about addressing mental health to combat gun crime and violence, then they should support expanding Medicaid under the ACA so all state residents have access to affordable mental healthcare.

But Republicans don’t, they are not serious about addressing mental health to combat gun crime and violence – ‘mental health’ is a bad faith dodge Republicans use to side-step the issue.

 

[MarathonMike]

If Republicans are serious about addressing mental health to combat gun crime and violence, then they should support expanding Medicaid under the ACA so all state residents have access to affordable mental healthcare.

But Republicans don’t, they are not serious about addressing mental health to combat gun crime and violence – ‘mental health’ is a bad faith dodge Republicans use to side-step the issue.

Medicaid is only for poor Americans, mental illness affects ALL Americans. Both Democrats and Republicans have "dodged" the mental health issue for decades.

 

[Rogue AI]

I would agree using the Bruen decision as a guide. However Rahimi seems to set another standard. Clarence Thomas dissented for that very reason, that this decision went against the standard of Bruen.

Rahimi is pretty narrow, all of his claims came after he had already racked charges and convictions over a substantial period of time. Whereas red flag laws require such low standards without the benefit of due process. Thomas is right though, the Constitution does not grant the government power to revoke rights even with due process.

 

[SavannahMann]

Rahimi is pretty narrow, all of his claims came after he had already racked charges and convictions over a substantial period of time. Whereas red flag laws require such low standards without the benefit of due process. Thomas is right though, the Constitution does not grant the government power to revoke rights even with due process.

Actually it does. Thomas claimed that Rahimi violated the Bruen decision and the definition of the standards for curtailing the Second Amendment Rights.

However. You can have rights deprived through due process.

 

[Rogue AI]

…because there’s no ‘historical analogue’ during the Foundation Era.

The problem is that the Bruen Court painted itself into a corner with its test – where a strict, consistent application of the test would prove to be politically problematic, running counter to sound public policy, such as allowing domestic abusers and those subject to extreme protective orders to possess firearms.

Go read it, in fact they did offer evidence that was consistent with Bruen. At least the conservative Justices did. You are wrong.

 

[NewsVine_Mariyam]

Doesn't this ruling concern only those person's under a domestic violence based restraining order?

I think at least one of the objections was that the protection order (restraining order) is a civil order and that at the time it was issued the subject had not yet been convicted of a criminal violation, although he eventually was charged & convicted.

 

[frigidweirdo]

Under the Bruen decision the Supreme Court ruled that for a restriction to be valid, it had to have a historical analog or example. Something similar enough to be used as a basis for modern restrictions.

That seemed simple enough. If they didn’t have a restriction at the time the Second was ratified you can’t have it now.

Supreme Court upholds law barring domestic abusers from owning guns in major Second Amendment ruling | CNN Politics

The Supreme Court upheld a federal law Friday that bars guns for domestic abusers, rejecting an argument pressed by gun rights groups that the prohibition violated the Second Amendment.

amp.cnn.com

I’ve read the actual decision. Both Bruen and this one.

https://www.supremecourt.gov/opinions/23pdf/22-915_8o6b.pdf

And now the Supremes have decided some regulations and restrictions that didn’t exist at the time of the second are fine. As long as they comply with the principles of the founders. And those principles appear to include restricting firearms from someone who authorities believe have a good chance of using firearms to harm another.

In this case, someone who was subject of a Domestic Violence restraining order.

My first thought was that was certainly not the principles I had learned about History. I always admit I could be wrong. But in this case, I don’t think so.

My second thought was that the principle that the Supremes say exists to justify the constitutionality of the Domestic Violence restriction, is the same one people use to justify Red Flag laws.

So I wonder, using the Rahimi decision, if Red Flag Laws would be ruled as Constitutional?

Well, imagine if the police couldn't take the guns from someone who was aggressive and they were trying to arrest.

 

[NewsVine_Mariyam]

Doesn't this ruling concern only those person's under a domestic violence based restraining order?

Yes & no? Yes - specifically this federal law but this could impact state law as well from what I read. This is the law that they found unconstitutional but that SCOTUS carved out an exception for.

... He [Rahimi] was charged and convicted in a federal district court of unlawful firearm possession under 18 U.S.C. § 922(g)(8)[6], which prohibits individuals from owning firearms if they are "subject to a court order that restrains [them] from harassing, stalking, or threatening an intimate partner."[3][4]​

Domestic violence protective orders related to bans on possessing a firearm became enacted by the 1968 Gun Control Act.[7][8] However, the federal law which enforced the restrained order in question was the 1994 Violence Against Women Act.[8]​

 

[NewsVine_Mariyam]

I think Bruen covered blanket restrictions, not anything involving due process.

It's why they didn't allow the domestic violence challenge to stand. To get a restraining order a Judge has to issue it, hence due process. It would be the same with red flag laws if and only if due process is followed.

That blue cities would mangle due process making it impossible to get off these orders is another thing to sue over.

While the 5th & 14th amendments to the U.S constitution state that a person cannot be deprived of their life, liberty or property without due process of the law, I thought that the due process to which they're referring involves the 6th Amendment right ...

"to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."​

https://constitution.congress.gov/constitution/amendment-6/​

 

[NewsVine_Mariyam]

I think Bruen covered blanket restrictions, not anything involving due process.

It's why they didn't allow the domestic violence challenge to stand. To get a restraining order a Judge has to issue it, hence due process. It would be the same with red flag laws if and only if due process is followed.

That blue cities would mangle due process making it impossible to get off these orders is another thing to sue over.

A judge issuing an order without the subject of said order getting his day in court FIRST is not really due process though is it?

 

[NewsVine_Mariyam]

Using Bruen there have been some interesting developments. A drug user had his conviction overturned by the Fifth Circuit Court of appeals because according to them, using Bruen as a guide, the prohibition against drug users buying guns is unconstitutional.

But how can that be since President Biden's son was just convicted of doing this very same thing?

 

[NewsVine_Mariyam]

A TEMPORARY restraining order is the only type that doesn't require a formal hearing.

In Missouri it is termed an ex parte restraining order.

Firearms removal is not a function of a Temporary Restraining Order...at least in my state...


View attachment 965506

I have a temporary order against the abuser. Can his/her gun be taken away?

Missouri law tells a judge what protections s/he is allowed to grant someone in a temporary order of protection. Restricting an abuser’s access to have or buy a gun is not included in the list of protections that can be granted in a temporary order.1 1 Mo. Rev. Stat. § 455.045

www.womenslaw.org

Is the temporary issued just until a hearing can be scheduled where both parties have to appear and give testimony or present evidence?

 

[John Edgar Slow Horses]

Yes, I personally do feel red flag laws are constitutional.

They deprive someone of firearms because due process was followed. Do not act in such ways with firearms. You do not get to threaten physically or verbally someone with a firearm.

 

[Missourian]

Is the temporary issued just until a hearing can be scheduled where both parties have to appear and give testimony or present evidence?

Yes, and it is relatively easy to get.

But to gain a full order of protection requires a hearing with witnesses, police reports, etc. with both sides allow to present testimony.

That's due process as far as I'm concerned.

This is for Missouri only. Other states may differ in their protection order processes and protocols.

Here's the link if you're interested.

https://www.womenslaw.org/laws/mo/restraining-orders/all

 

[Mac-7]

Are Red Flag Laws Constitutional?​

I think so as long as the cops are allowed to take someones guns before proving in court that they are a felon

 

[airplanemechanic]

Yes, I personally do feel red flag laws are constitutional.

They deprive someone of firearms because due process was followed. Do not act in such ways with firearms. You do not get to threaten physically or verbally someone with a firearm.

What if someone "feels" threatened by someone who never used a firearm to threaten them? You do realize using a firearm to threaten someone is not a red flag law, it's a felony?

 

[Desperado]

No , because they eliminate due proceess

 

[John Edgar Slow Horses]

What if someone "feels" threatened by someone who never used a firearm to threaten them? You do realize using a firearm to threaten someone is not a red flag law, it's a felony?

Mixed up question. Don't use a firearm to threaten anyone.

 

[John Edgar Slow Horses]

No , because they eliminate due proceess

They get due process, and you know it.