by Art Joslin, J.D, D.M.A., Director of Legal Services
On June 24, 2022, in the aftermath of the tragic Uvalde, Texas school shooting, the Bipartisan Safer Communities Act (BSCA) became law. On June 25th, Biden was quoted as saying, “This is a monumental day,” as he signed the bill into law. The bill addresses so-called red flag laws (19 states have enacted some type of red flag law), strengthens background checks for citizens 18-21 years of age who wish to buy guns, and provides funding for school mental health services, violence prevention and security.
Much of the concern we are hearing from Network members about this legislation involves red flag laws and resulting due process violations.
First, as the Biden administration encourages the various states to violate the civil rights of gun owners and red flag laws are back in the headlines, we must ask members to understand that since the Network in no way provides insurance coverage, we cannot pay attorneys to go to court seeking redress if a member’s constitutional rights are violated by an Extreme Risk Protection Order (ERPO) or any other incursion into his or her gun rights.
Why is that? Because being targeted for Red Flag confiscation is outside the control of the individual who is targeted. In contrast, when the Network assists a member with legal defense expenses after self defense, that member has made an intentional choice to use force in self defense as the alternative to being killed or crippled by their attacker. Their use of force is an intentional act and insurance coverage cannot be purchased for intentional acts, as a matter of public policy. For a more thorough discussion of this issue, please see our Network President Marty Hayes’ statement at https://armedcitizensnetwork.org/red-flag-law-network-assistance.
Instead of duplicating an extensive discussion we had about red flag laws in 2019, we direct your attention to a discussion of what to do if served with an ERPO. Please study the responses written by our Affiliated Attorneys at https://armedcitizensnetwork.org/april-2019-attorney-question and https://armedcitizensnetwork.org/may-2019-attorney-question. We find their words are as useful today as three years ago.
As we go on to analyze the BSCA, please keep in mind that the Network’s assistance to members is tightly focused on legal defense of use of force in self defense, such that we cannot get involved in fighting civil rights incursions like red flag weapons confiscations, carry permit denials, or restoration of rights after record expungement to name only a few legal fights we get asked to fund. Nonetheless, the amount of concern expressed over the red flag element of the BSCA encourages me to share some of my own thoughts and personal opinions on the issue and other elements of the new law.
Red flag laws are laws that allow concerned (or nosey) citizens to call and turn in to police someone they believe is mentally ill, unstable or they simply are a person who own guns. What about a person who sits on the back porch and cleans their guns like my dad would do? Could an anti-gun neighbor who hates my dad call the police because they think he’s unstable? If he lived in one of the 19 states with red flag laws, they can now. A judge can review the information given and if warranted issue an Extreme Risk Protection Order (ERPO) allowing police to enter your home, confiscate all your guns, and keep them for an indefinite time.
The BSCA provides a $750 million funding source that will be available to all states for the creation and funding of laws that ensure deadly weapons are kept from the hands of dangerous persons and the money can be used for drug courts, mental health court, veterans court, and ERPOs.
Of course, no one wants guns in the hands of felons or the mentally ill, but many times, these laws expose lawful gun owners to random and subjective confiscation; and many times, without due process. I’m not against red flag laws per se but I see them as the first step toward future gun control and confiscation at the national level.
The BSCA bill also adds language allowing convicted domestic abusers to be added to the National Instant Criminal Background Check System (NICS) registry of ineligible people who are prohibited from purchasing and possessing firearms. The bill creates a provision for a domestic violence abuser to stay on NICS ineligibility list for 5 years and can only be removed after the 5-year time limit if no other criminal acts are committed. Absent from discussion of these red flag and domestic violence laws is the expense one must incur to get their guns back. Imagine the collector with hundreds of antiques in his collection getting an attorney, going to court, and fighting for the return of his collection.
Ratified in 1868, the 14th Amendment to the U.S. Constitution guarantees equal protection to all citizens and equal application of all laws. It reads:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Where is the due process in laws that are compulsory and confiscatory? How many more dollars must be spent, attorney costs, doctor visits, courtroom hearings, before you are adjudicated sane? Who looks out for you? The 14th Amendment was written to prevent this unmerited harm being visited on innocent people.
Also attached to the BSCA bill is nearly $900 million toward children’s mental health services. Normally the Federal budget is not our focus as gun owners but it’s almost $1 billion in funds that could pay for alternative gun safety measures. However, as we have seen in the past, many of these legislative measures are nothing more than window dressing. They provide additional mental health training through programs that already exist like including $500 million through the State Based Mental Health Service Grant Program to hire more mental health providers. The BSCA provides $500 million to train and diversify school counselors, social workers and psychologists. The bill also includes $300 million in funding to institute safety measures in and around schools. It will support school violence prevention efforts. Interestingly enough, this legislation prohibits use of funds under the Elementary and Secondary Education Act to train or equip any person with dangerous weapons in schools. This information is well hidden as I can’t find much about it.
BSCA includes new background check requirements for gun purchasers. If you’re under 21, you’ll have to go through an Enhanced Review Process before being allowed to buy a gun. This process--
- Requires an investigative period to review juvenile and adult mental health records, including checks with state databases and local law enforcement.
- Gives NICS up to three business days to conduct the initial search. If the search reveals a possible disqualifying record, NICS will have an additional 10 business days to complete the investigation.
- Provides additional funding to the FBI to administer the new process checks in NICS.
On the surface, these sound ok. Obviously, we don’t want people under 21 who have a mental illness to have guns. But if we read between the lines, the state can use this as another de facto gun registration scheme to identify gun owners. If an under-21 purchaser is approved, now the state has one more way to track that armed citizen.
The so-called boyfriend loophole has been closed. This part of the bill includes convicted domestic violence abusers and other individuals who are subject to domestic violence restraining orders. They immediately lose their gun rights and must wait a 5-year period with a clean record, before their gun rights may be restored. Again, I don’t see the words “due process.”
We have been dreading the Biden/Harris’ administration getting gun control measures passed, supported by what is essentially a Democrat-controlled House and Senate. There is little good for liberty and freedom in the Bipartisan Safer Communities Act and much that will have to be fought out in the courts as civil rights violations pile up as a result of this legislation.
While the Network does not itself engage in political activism or lobbying (out of respect for the diversity of our members who hold quite a variety of beliefs), individually, our founders, staff and advisors are frequent donors to organizations better equipped and experienced to take this fight to court and we invite members to join our individual efforts to support the fighters at the Second Amendment Foundation, the Firearms Policy Coalition and on the state-level, the many organizations taking the fight to their own state houses.
To read more of this month's journal, please click here.