The next chapter of the Parkland, Florida, school shooting saga has begun. Anti-gun interest groups and politicians have used the Parkland shooting to launch what, until recently, they regarded as a distant dream — a wave of state legislation authorizing the confiscation of firearms.
Quietly, but quickly, a raft of identical gun confiscation bills have been filed by liberal politicians in states across the country. They are all copies of a ballot measure that passed in Washington State in November 2016. And that ballot measure was loosely based on a California gun confiscation law enacted in 2014 and a much older Connecticut law from 1999.
The first bill in the recent wave was actually enacted before the Parkland shooting. Oregon’s SB 719, a Democrat bill which passed with only one Republican vote, was signed into law in August 2017. Since the Parkland shooting, copy-cat bills pushed by progressive legislators anxious to signal their opposition to guns have moved with alarming speed in blue states. On Wednesday, the Vermont Senate approved its version, S 221. In Rhode Island the bill is H 7688.
In total, more than a dozen states are now considering similar gun confiscation laws. Even red states like Kansas, where SB 431 has been submitted, are considering them. On Thursday, Ohio’s Republican Governor John Kasich jumped on the bandwagon and called for a similar law in his state.
Sometimes dubbed “red flag laws,” they provide for “extreme risk protective orders” that direct police to confiscate all firearms and ammunition from any person who is targeted by such an order. At first glance, that might seem reasonable – nobody wants an unhinged psychopath who poses an “extreme risk” to others to possess a gun. But the laws are written so loosely that law enforcement can also seize the guns of ordinary citizens who have never broken the law.
These gun confiscation measures grossly violate the due process and Second Amendment rights of lawful gun owners. The constitutional problems are as follows:
- The seizure of guns without any hearing at all. The laws all contain an “ex parte” provision that allows the state to temporarily seize a person’s guns without even notifying the gun owner or giving him a chance to be heard. This is the quintessential denial of due process. The Fourth Amendment makes clear that a person cannot be denied of liberty (to exercise one’s constitutional right to bear arms) without due process of law. This confiscation is “temporary,” but it can easily lead to long-term or permanent confiscation.
- Based on the testimony of one unrelated person. The confiscation order can be based on the testimony of only one person claiming that the gun owner poses a risk to the safety of himself or others. The law deceptively says that it has to be the testimony of a “family member.” But “family member” is defined to include “former dating partners” and anyone who has ever lived with the defendant. So a jilted former boyfriend or girlfriend, or even a roommate from years ago, could easily set in motion the disarming of a lawful gun owner.
- Using a very low standard of proof. The standard for obtaining an ex parte order against a gun owner is absurdly low – one need only show “reasonable cause” to believe that the person may pose a risk. That’s even lower than the “probable cause” standard for obtaining a search warrant. In addition, the judge is forced to rush his decision and issue the confiscation order on the same day of the ex parte hearing. Within two weeks of the ex parte hearing, a hearing with the gun owner present must occur; the purpose is to put in place a long-term confiscation order. But even at that hearing, the standard of proof is far below the “beyond a reasonable doubt” standard used in criminal trials. Rather, it need only be shown by “a preponderance of evidence” that the person poses a risk of injury to self or others. What kind of evidence? Things like the “reckless storage” of firearms and drinking habits can be considered. If you keep a handgun in the bedside table and drink beer regularly, you may in trouble.
- Shifting the burden of proof to the gun owner. The long-term confiscation order lasts up to a year, but may be renewed indefinitely. Once it is in place, it becomes very difficult to remove. To have the confiscation order lifted, the gun owner must prove he does not pose a threat to himself or others. Proving a negative is nearly impossible. Adding insult to injury, the bill even authorizes local law enforcement to charge the gun owner a storage fee for confiscating and storing his guns.
One need not be a lawyer to see the multiple violations of due process in these laws. Even the ultra-liberal ACLU acknowledges that such confiscation laws threaten due process. Hopefully, when the legal challenges eventually occur, the judges will recognize the multiple constitutional problems.
But such concerns won’t stand in the way of an anti-gun state legislator demanding that we “do something” now. And never mind that the Connecticut confiscation law did nothing to stop the Sandy Hook shooter.
To be sure, a constitutional republic can and should keep guns out of the hands of homicidal maniacs, consistent with the Second Amendment and due process. But these new laws go far beyond what is necessary and shred the Constitution in the process. Indeed, if a government wanted to incrementally disarm its citizenry, then these “extreme risk” confiscation laws would be the perfect first step.
Kris W. Kobach is the elected secretary of state of Kansas. Prior to becoming secretary of state, he was a professor of constitutional law at UMKC Law School from 1996 to 2011. An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the ten ICE agents who sued to stop President Obama’s 2012 DACA amnesty. During 2001-03, he was Attorney General John Ashcroft’s chief adviser on immigration law at the Department of Justice. He is also a 2018 candidate for the office of governor of Kansas. His website is kriskobach.com.