Why the NRA Opposes Rubio’s ERPO Bill

Opinion

Ban Guns Red Flag Laws
Why the NRA Opposes Rubio's ERPO Bill

Washington D.C. – -(AmmoLand.com)- When discussing “red flag” gun laws (the technical term is usually an Extreme Risk Protection Order, or ERPO), one of the questions is why the NRA opposes many of the measures that are currently being passed. Well, it’s one of the classic cases of anti-Second Amendment extremists taking advantage of the good intentions of many people, including Second Amendment supporters.

Here’s the deal: When mass shootings happen, the anti-Second Amendment extremists pounce. There is a huge emotional groundswell that leads to many attacks against the NRA and other groups that support the Second Amendment. Politicians like Chris Murphy and Kamala Harris seize on the chance to attack our rights and demonize us as child killers and domestic terrorists for opposing the sweeping collective punishments that they would impose if they had the power to do so. That dehumanization campaign is working to an extent.

In the wake of the Parkland shooting, David French outlined a way to implement ERPOs in National Review. Now, before we hear a cry of “Negotiating Rights Away,” actually read the whole article first, as well as his response to a critique.

The key here is that French proposed very strong due process protections:

  1. Only allowing a limited number of close people to be able to file a report.
  2. Those filing the report would have to include clear and convincing evidence.
  3. The person reported would have to have a chance to respond to the allegation.
  4. The order would lapse after a set period of time.

The NRA’s position on ERPOs, as outlined by this fact sheet, is very similar to French’s outline of balancing the need to cut off a dangerously mentally ill individual who could carry out a mass shooting, and our Second Amendment and due process rights. That should clear up the misrepresentations, which have not only come from the expected direction of anti-Second Amendment extremists, but also from some Second Amendment supporters.

On the other hand, Rubio’s bill has a lot of problems.  Here are some of them:

  • It does not require a referral for mental health treatment as a result of an ERPO. Let’s face it, if there is clear and convincing evidence someone is having a mental health crisis that makes him (or her) dangerous, then an ERPO is just slapping a band-aid on malignant melanoma.
  • The bill also has an overly broad definition of family member, to include roommates within the past year or a former dating partner. That leaves open the possibility of the ERPO being used as a means to get revenge for a bad end to such a relationship.
  • A new federal offense is created for having guns after an ERPO is issued, without any protections for due process. No evidence is required to make an individual a prohibited person, and they don’t even have a chance to respond to the allegations. A mere telephone conversation could result in a court order for the immediate surrender of firearms.
  • There is no deadline for the return of surrendered firearms, nor are there any requirements to ensure that surrendered firearms are kept safely. In other words, those firearms could be damaged or ruined, and there would be no recourse for a person who is found to not be a danger after a court hearing.

Look, it goes without saying that ERPOs are not exactly a good thing for Second Amendment supporters to discuss. Like NICS, it is the best of a bad lot when it comes to addressing a real problem. Ideally, we’d have no need for ERPOs because there would be no stigma for seeking mental health treatment, or because potential locations for mass shootings would be harder targets, or because the shooters will not gain notoriety for those actions. But we’re not in an ideal world.

Just as Second Amendment supporters need to suck it up and fix NICS, Second Amendment supporters must also buckle down, and come up with ways to implement EPROs that respect due process and which don’t serve as a tool for permanent gun confiscation. If we don’t engage and come up with a good process, unreasonable anti-Second Amendment extremists will come up with versions that will be truly awful. It sucks to have to make that tradeoff, but the alternative could see anti-Second Amendment extremists get the power to take everything we have gained, including the Heller and McDonald decisions, away.  Fight on.


Harold Hu, chison
Harold Hutchison

About Harold Hutchison

Writer Harold Hutchison has more than a dozen years of experience covering military affairs, international events, U.S. politics and Second Amendment issues. Harold was consulting senior editor at Soldier of Fortune magazine and is the author of the novel Strike Group Reagan. He has also written for the Daily Caller, National Review, Patriot Post, Strategypage.com, and other national websites.

  • 38 thoughts on “Why the NRA Opposes Rubio’s ERPO Bill

    1. I have a few issues with ERPOs.. with the biggest of them being anonymous reporting. This is dangerous. Not just because of assholes. Let me give you an example. Say, someone’s daughter, sister, wife, etc. finds out they have a stalker. They can’t really do anything if they don’t have a description or name of the person, and even if they do, restraining orders are only deterrents. So this woman decides she needs protection, and buys a gun. If the stalker finds out, what’s stopping them from petitioning for an ERPO?
      ERPO laws usually don’t call for a substantial amount of evidence, and can be enacted by hearsay. It then becomes the burden of the accused to bring forth a substantial amount of evidence in order to clear themselves, when the court date arrives. That could be a couple weeks at the least. That is a huge window for a stalker or would-be rapist/murderer to commit their crime.

      ERPOs, as advertised, are not only burdensome and unjust, but are also dangerous to the people they target.

    2. “In the event of an emergency, ex parte order…”

      Full stop. Ex parte means no due process. The VNRA endorses ex parte orders. I don’t:

      “The only thing ERPOs do that CURRENT LAWS AND TOOLS don’t do is violate human/civil rights without due process, with no notice. Anonymously. And then leave the possibly now angered subjects on the loose with access to other lethal weapons.”
      http://zelmanpartisans.com/?p=5788

    3. Another one hit out of the park by Harold Hutchinson. As usual it is a foul ball. He is fed and pampered by the negotiating
      rights away organization and he keeps churning them out one after the other. Red flag laws are unnecessary and are for one purpose, to get our guns off the street. It has been said time and time again that there are already laws in place to take care of mentally ill people. Taking the guns solve nothing. It is the person, stupid, not the tool.

    4. I would add:
      5. If the court finds against the victim, oops I mean the subject, the subject will be confined for evaluation by competent medical personnel. Upon findings from medical personnel in not more than 72 hours the subject if found not to be a threat to others will be returned home, the ERPO cancelled and wiped from his record. Since the government has no right or authority to prevent someone from committing suicide (My body, my choice) self harm is not subject to ERPO.
      6. Anyone filing a false report will be forced to pay double all legal fees, lost wages, and any other expenses the victim incurred. In addition to the reimbursement they will also be subject to paying all costs the government incurred and spend a year in jail. Not 7 1/2 months, a full 365 days to give them time to think about making false reports.

    5. Why is it when one talks to old timers, that back in the 1940’s and 1950’s, one could walk into a hardware store, gun shop, department store, pick out a handgun, pay for it and walk out with no nics, background check, no government interference, and no problems like today. Background checks = gun registration = gun. confiscation. = you locked away forever in a New World Order. concentration death camp.

    6. Red flag laws are the perfect combination of relieving law abiding citizens of due process and taking private property.
      This law was superbly crafted by the left that costs the accusers nothing and the accused everything.
      What politician, bureaucrat, judge or law enforcement is going to risk being wrong especially when they don’t have to be right? It costs them nothing to er in the name of public
      safety.

    7. “… one of the questions is why the NRA opposes many of the measures currently being passed.” A better question is, Why isn’t the NRA opposing any and all measures being passed? There are no good Red Flag laws at this time. They are ALL open to abuse and they ALL violate the second, fourth and fifth Amendments to the Constitution. NRA, compromising away the rights of members and citizens for decades. Gracias LaPierre and your hand-picked crooked get-rich cronies.

    8. Whenever the citizenry chooses safety over Liberty, the Republic is lost. The ERPO does just that.

      President Trump advocated such when egregiously stating “Take the guns first, due process second”. Same concept, different wording.

      This is exactly what ERPO does, it tears at the core of our fundamental Rights.

      Proponents of these orders admit abuses are evident, they will happen. Anyone been through divorce court and have unfounded allegations to defend against….these abuses pale in comparison to ERPO’s.

      Anytime a citizen’s Rigjts are chilled first; no hearing first, no due process first, no innocent until proven guilty first, no burden of proof upon the accuser first, no confront the witness against you first, no speedy trial first, no representation by counsel first, such action is unconstitutional.

      I would think Judge Kavanaugh of the Supremes would be a champion in this dog fight!

    9. Why do I have to “suck it up and fix NICS”? I don’t LIKE NICS. I think NICS is unconstitutional. There shouldn’t BE any NICS. NICS is an infringement of my rights. NICS should be abolished, not “fixed”. ERPO’s? None of that crap either. If someone is mentally ill they should be transported to a mental health facility and remain there until they are well again. Notice no one wants to take their car keys away. No one wants to confiscate their vehicle, or their axe collection. No one wants to commit them to an institution for evaluation or incarceration. NO. They just want those GUNS. Meanwhile, they think it is okay to let them wander around in society and be “self-medicated”. That’s the idea that’s NOT working. NOT a bit. Every one of these schemes are just a way to infringe and violate the 2A rights of citizens. Just say NO to every one of these schemes. ALL of them.

    10. IF someone poses an extreme risk to themselves and others, such that their Second Amendment Rights must be violated, they should also have their automobiles, bats, knives and other weapons confiscated as well. Any Red Flag law that does not take ALL WEAPONS, is unconstitutional gun control masked as a public safety law!! How many advocates of Red Flag laws would support them if THEY could have their automobiles etc. confiscated.

    11. The Author is part of the problem.
      You cannot negotiate away rights for fear that something worse will happen.
      As a “Historian”, he of all people should know that heading down this road leads to tyranny.

    12. I do support what David French proposes. Protection orders are for the well being of our society. Across theU.S., I am confident that we can implement these orders and have a win-win for all. Hear It, See It, Report It.

      1. ERPO are an infringement on the right of the people. Period. There is already such a thing as being deemed a danger to yourself and others. NO on ERPO

      2. How many mass shootings have happened after people saw/heard and reported only for the authorities to not take action???

        These orders are too easily turned to political/religious/personal suppression.

      3. New Mental Institutions need to be built to house people who think this way.
        What do you not understand on what the framer’s wrote in the original documents?

      4. I am quite ok with ERPOs that do indeed fully – completely! – protect “due process.”

        I violently oppose ERPOs that – in any way – violate “due process.”

        The difference is incredibly important.

      5. Instead of pushing the gun control agenda known as ERPO’s just ENFORCE CURRENT LAWS and these unconstitutional ERPO’s wouldn’t be needed.

        The FBI admitted, it did not respond appropriately to a timely warning from a “person close to Nikolas Cruz.” According the FBI, that person provided “information about Cruz’s gun ownership, desire to kill people, erratic behavior, and disturbing social media posts, as well as the potential of him conducting a school shooting.

    13. Once again Harold Hutchinson goes mushy and urges acquiescence to obviously unconstitutional legislation. With “friends”like Harold we need no enemies. I think he would enjoy turning up the heat and watching the frogs come to a boil. If we lose the Second Amendment it will be solely because we did not use it.

    14. The way these ERPO laws are being written is ludicrous and since there are no consequences should someone file an ERPO out of spite. These ERPO’s violate and deny law abiding citizens to many of our rights and never even got past the first vote.

    15. Since we’re dealing with mentally troubled persons, the law should include analysis by licensed psychiatrists. Doubtlessly, we all know of judges and law officers who are far from qualified for such professional undertakings. I also doubt that they’d volunteer to diagnose mental illness if their jobs depended on doing it correctly.

      Justice requires that the accused be afforded at least a modicum of professional analysis and an official opinion by two or more psychiatrists. Leftists screech in the streets if denied a full measure of due process but close their eyes on the subject of self-defense by firearm. These laws open the doors to scorned partners, angry neighbors, children seeking a parent’s wealth and arrogant judges.

      These laws empower mothers, fathers, brothers, sisters, sons, daughters, uncles, aunts, cousins, friends, neighbors, judges, police officers, boyfriends, girlfriends, classmates, teachers and everyone except those actually qualified to judge mental competence. Makes me wonder about the motive for this law.

      Predictably, these newly empowered classes will start lodging complaints against firearms owners they don’t personally know. These empowered classes will look at acquaintances who share residences with or live nearby firearms owners. Complaints soon will be lodged by former partners of acquaintances. Friends of former partners, unhappy in-laws, step children, et al., also will complain.

      In other words, those who know little about owners but are acquainted with those who do, will lodge charges that someone they know may be in danger. It’s complicated and absurd. To iterate, socialists are not interested in public safety. They hope to disarm the governed before dispatching the disobedient.

    16. This type of un-constitutional snake-speak is precisely why I will never donate to the NRA again.

      The NRA has turned into another enemy of the Republic.

        1. Actually I guess you didn’t read this. The NRA proposed its own ERPO! They just oppose any that doesn’t agree with theirs.

          The first thing the NRA says is ‘It’s not the gun, it’s the person’ that causes shootings and they are right. So how come with the NRA proposed ERPO it is the guns, not the person that get removed?

    17. It MUST be understood. To rely on ANY Politician or Judge to preserve the Rights afforded in the Constitution Is a FOOL’S errand. The very reason the Founders Established the Bill Of Rights was because they Understood that as times change people who disagree with those Rights would try to Amend or Remove them. The People who believe those Rights should be Upheld and Preserved MUST Choose. Live Free or Live Repressed. The idea that preserving those Rights through the Act of supporting and voting for a particular politician has long since been proven to be folly. Keep Your Powder Dry….

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