DOJ Releases Biden Gun Confiscation Order Legislation

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In May, Attorney General Merrick Garland told lawmakers that the Department of Justice’s civil rights work was “critical to protecting the American dream.” IMG NRA-ILA

U.S.A. -(AmmoLand.com)- In May, Attorney General Merrick Garland told lawmakers that the Department of Justice’s civil rights work was “critical to protecting the American dream.” Since then DOJ has made clear that Garland’s selective definition of “civil rights” has no room for the Second Amendment or even basic due process under the law. Moreover, contrary to recent messaging, Garland and the DOJ appears to support an increase in civilian-police confrontations – so long as the civilian involved is not actually suspected of having committed any crime.

On June 7, the DOJ released model state gun confiscation order legislation – sometimes referred to as “extreme risk protection order,” “gun violence restraining order,” or “red flag” legislation. Regardless of the marketing, such laws empower the government to extinguish a person’s Second Amendment rights and confiscate their firearms without due process. Those subject to these orders are stripped of their rights without being convicted of any crime. By releasing this model language, the Biden administration has endorsed these unconstitutional measures.

Section 1 of the Fourteenth Amendment to the U.S. Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” In District of Columbia v. Heller (2008), the U.S. Supreme Court determined that the Second Amendment protects an individual right to keep and bear arms; in the Fourteenth Amendment context, a liberty. A respondent’s firearms are, of course, their property

Ex Parte Orders

The Biden gun confiscation order language provides that a,

court shall issue an emergency ex parte extreme risk protection order upon submission of an application by a petitioner, supported by an affidavit or sworn oral statement of the petitioner or other witness, that provides specific facts establishing probable cause that the respondent’s possession or receipt of a firearm will pose a [significant danger/extreme risk/other appropriate standard established by state law] of personal injury or death to the respondent or another person.

An ex parte hearing takes place without notice to respondents and without their ability to participate in the proceedings. The court is only presented the statements of the individual petitioning to strip the respondent of their rights. There is no opportunity for the respondent to challenge the veracity of the petitioner’s statements. This one-sided procedure is ripe for abuse.

The Biden administration proposes a “probable cause” evidentiary standard for the ex parte gun confiscation order procedure. This means that the petitioner need not establish proof that the respondent poses a “risk” in order for the court to issue a confiscation order.

Moreover, a “probable cause” standard makes no sense in this context. In order to make an arrest or acquire a search warrant, police need to cite specific facts that establish probable cause that a crime has been committed. Crimes, of course, have specific elements. In the Biden gun confiscation order context, no crime has been alleged. Vague claims about a person’s strange but lawful behavior giving rise to “probable cause” of “risk” is a ridiculous perversion of the long-established legal process.

Orders Pursuant to a Hearing

Biden gun confiscation orders issued after a full hearing, where the respondent had an opportunity to participate, would strip a person of their Second Amendment rights and firearms for at least one year. Under the Biden language, such an order could be renewed indefinitely in one-year increments – empowering the government to strip a person of their Second Amendment rights in perpetuity without a trial.

Moreover, in the full hearing context, the Biden administration endorses a “preponderance of the evidence” evidentiary standard. In other words, the petitioner must prove that there is a greater than 50-percent chance the respondent meets some nebulous level of “risk.” Of course, this weak evidentiary standard is in stark contrast to the traditional evidentiary burden used in circumstances where individuals face a lengthy and indefinite loss of a fundamental right: “beyond a reasonable doubt.”

During the course of an order, a respondent would have one opportunity to petition for the termination of their gun ban. In order to prevail,

The respondent shall have the burden of proving, by the same standard of proof required for issuance of such an order, that he or she does not pose a [significant danger/extreme risk/other appropriate standard specified by state law] of personal injury or death to himself or herself or another.

In a sick perversion of our constitutional order, under the Biden legislation, the state would be relieved of its burden to prove that the respondent poses a “risk” that necessitates the continued deprivation of a fundamental right. Rather, the respondent would be required to prove that they do not pose a “risk.”

Such a bastardized legal procedure based on a flimsy evidentiary standard combined with an ill-defined concept of “risk” endangers all gun owners’ right to keep and bear arms.

Petitioners

In many jurisdictions with gun confiscation order legislation, only close family members and law enforcement officers may petition for an order. This helps to ensure that the petitioner has a significant relationship with and knowledge of the individual, or in the case of law enforcement, will face professional consequences if they have been found to have abused the procedure.

In its draft legislation, the Biden administration has made clear that they want the categories of petitioners to be far broader. The legislation would define eligible petitioners to include,

(E) A health care provider [as defined by state law] who has provided health services to the respondent; 

(F) An official of a school or school system in which the respondent is enrolled or has been enrolled within the preceding [six months/one year/two years/other appropriate time period specified by state law]; or

(G) [Any other appropriate persons specified by state law.]

Under such a regime, a doctor, nurse, dentist, optometrist, or EMT might be able to petition the court to strip an individual’s Second Amendment rights regardless of how fleeting their interaction with the respondent may have been or whether or not they have any mental health assessment training.

Worse, the Biden administration endorses granting any school employee a veto on a student’s right to keep and bear arms up to two years after they were enrolled. Consider the danger of empowering one of the most partisan left-wing occupational fields to adjudicate millions of current and former students’ Second Amendment rights.

Dangerous Confrontations Between Citizens and Police

The Biden gun confiscation order legislation would create confrontations between armed individuals in their homes and the law enforcement officers tasked with disarming them. The problem is potentially even more acute in the ex parte context, where the arrival of an officer may be the individual’s first notice that their rights have been abrogated.

At 5:17 a.m. on November 5, 2018, police served a “Red Flag” protective order at the home of 60-year-old Gary J. Willis in Anne Arundel, Md.  According to the Baltimore Sun, Willis brought a firearm when he answered the early morning knock at his door. The confrontation ultimately ended with police shooting and killing Willis in his own home.

Confiscation of Non-Prohibited Persons’ Guns

The Biden gun confiscation order legislation contemplates the confiscation of all firearms in a location which a respondent has access to, regardless of whether those firearms are owned by the respondent.

The Biden legislation provides,

(1) If the evidence presented at the hearing establishes probable cause that the respondent has access to a firearm, on his or her person or in an identified place, the court shall concurrently issue a warrant authorizing a law enforcement agency to search the person of the respondent and any such place for firearms and to seize any firearm therein to which the respondent would have access.

(3) If the owner of a firearm seized pursuant to this subsection is a person other than the respondent, the owner may secure the prompt return of the firearm by providing an affidavit to the law enforcement agency affirming his or her ownership of the firearm and providing assurance that he or she will safeguard the firearm against access by the respondent.  The law enforcement agency shall return the firearm to the owner upon its confirmation, including by a check of the National Instant Criminal Background Check System and the applicable state firearm background check system, that the owner is not legally disqualified from possessing or receiving the firearm.

The legislation anticipates that law enforcement would be empowered to confiscate firearms owned by individuals who are not covered by a confiscation order. The legislation places no burden on law enforcement to determine whether the firearms at a location accessed by the respondent are in fact the respondent’s property. To add further insult, those whose firearms are erroneously confiscated would be required to undergo an FBI background check before the return of their lawful property.

No Solid Evidence Supporting Biden’s Gun Confiscation Legislation

In a “commentary” released alongside the draft Biden gun confiscation order legislation, the DOJ pronounced, “research has shown that states can save lives by authorizing courts to issue [gun confiscation orders].” In reality, research on the effectiveness of gun confiscation order laws has been limited.

Research does show that the absence of due process has practical consequences for those wrongfully targeted under gun confiscation orders. Connecticut adopted an ex parte gun confiscation order procedure in 1999. An examination of the law found that 32 percent of ex parte orders issued in Connecticut were overturned following a hearing.

The RAND Corporation conducted a comprehensive study that surveyed the available research on several gun control policies. As part of the study, RAND researchers sought to determine “How Extreme Risk Protection Orders Affect Gun Use Outcomes.” The study stated, “We found no qualifying studies showing that extreme risk protection orders decreased any of the eight outcomes we investigated.” The “gun use outcomes” studied included “violent crime” and “suicide.”

The draft Biden gun confiscation order legislation is an overt attack on the Second Amendment and the due process rights that protect all Americans, regardless of whether they own firearms.

Attorney General Garland appears all too willing to selectively undermine civil rights by executive fiat at Biden’s request. However, gun owners can strike a blow against Biden’s executive gun control efforts by denying him his choice to lead ATF – longtime anti-gun activist David Chipman.

Please contact both of your United States Senators and ask them to vote against David Chipman.


About NRA-ILA:

Established in 1975, the Institute for Legislative Action (ILA) is the “lobbying” arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess, and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution. Visit: www.nra.org

National Rifle Association Institute For Legislative Action (NRA-ILA)

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Boz
Boz
5 hours ago

Come and get it. Bring your own body bag, please.

UncAl
UncAl
5 hours ago

So just how many coroners will it take to enforce sleazy Joey XI’s pipe dream?

PMinFl
PMinFl
5 hours ago

How many perpetrators of mass killings have been known to authorities but NOT disarmed by them? Reported by their own families to no avail? NONE

Grim
Grim
6 hours ago

I am crazier than AOC, Bernie, Lightfoot and Chipman!!! Come and get my firearms, I dare you.

Frdmftr
Frdmftr
9 hours ago

Note the use of the tag “respondent” to describe the victim of this abomination: This reveals the whole process is at Equity, i.e., civil jurisprudence, rather than Law, which is criminal jurisprudence. This is by intent, for no rights other than those established by civil contract can be protected at Equity. OUR RIGHTS DO NOT EXIST BY ANY CONTRACT WITH GOVERNMENT! Any claim to a citizen’s right to keep and bear arms will fall on deaf ears in an Equity hearing, and no one is going to tell the victim of this kangaroo court proceeding that he has no claim… Read more »

Vince
Vince
10 hours ago

This is nothing less than a replay of the Salem Witch Trials where you need to prove your innocence by dying. This proposal is a massive display of pure ignorance and manipulation.

JoeUSooner
JoeUSooner
5 hours ago
Reply to  Vince

Excellent comparison.

Arny
Arny
10 hours ago

I had a Chow Chow that would let you enter the home. But would not let you leave. Pretty smart when you think about it. LEOs should be careful when people don’t answer their doors. And you decide to kick it in. Never know what may be waiting on the other side. Remember any fool can yell POLICE. Don’t assume they may not anticipate your motives at 3am. Especially when they broke no laws. At this point there are a lot of people that don’t have much to lose. Going out this way could make them Patriots. And don’t be… Read more »

Last edited 10 hours ago by Arny
Hazcat
Hazcat
11 hours ago

BOTH Florida Senators support and promote ERPOs! Yes, Rubio and Scott are co signatories of ERPO bills. Scott even signed one into law when he was Governor of Florida.

gregs
gregs
2 minutes ago
Reply to  Hazcat

i know, i live here. little marco was one of the sponsors of red flag laws here in florida. still, i will write them and maybe they will see how much this violates several amendments of the Constitution. wishful thinking is the only alternative we have unless someone who supports the Constitution runs against them and then i will do everything in my power to get them elected.

Mack
Mack
1 day ago

Title II of the ADA can stop this.

What’s needed here are trial lawyers experienced with ADA litigation.

Arizona
Arizona
23 hours ago
Reply to  Mack

We have 5 years of evidence that red flag laws do not work at all. There has been an increase in the number os shootings in the last 5 years, while red flag laws have been introduced in about 18 states. They do not work. They violate rights and the law as written. This federal government has broken its contract with the People, violated its founding and restraints on its authority and it is the duty of citizens to throw off such a government as declared in our founding,

Sisu
Sisu
1 day ago

Let me reiterate: Demorats advanced Merrick Garland’s name as a candidate for SCOTUS because he was eminently qualified to uphold the principles and provisions of the Constitution of these United (HA !) States. For the same reasons he is now the “principal law enforcement officer” of the USA; The Second Amendment states “shall not infringe” as an absolute restriction on the government; The Fourteenth Amendment states “… no state shall ‘deprive any person of life, liberty, or property, without due process of law.’”; “(E)x parte” communications deprive the accused / respondent of Fifth Amendment protection: “No person shall be held to… Read more »

Arizona
Arizona
23 hours ago
Reply to  Sisu

The chances of it going hot increase every week.

linkman
linkman
1 day ago

Gun confiscations are going to get a lot of Americans killed.

Deplorable Bill
Deplorable Bill
1 day ago

Oh boy, here we go. The RIGHT of due process, the RIGHT to confront your accusers, the RIGHT to keep and bear arms SHALL NOT BE INFRINGED. All of these RIGHTS are restrictions ON THE GOVERNMENT not the people. Mark my words;. This is not going to end well. Government is supposed to guarantee and further our GOD given, constitutionally protected RIGHTS and FREEDOM’S. When government becomes destructive of these ends it is in the RIGHT of the people to alter or abolish it and create new government per the declaration of independence. All the people who serve take an… Read more »

Arizona
Arizona
23 hours ago

They will never try door to door en masse. One-offs for illegal red flag orders yes, but not a massive push. They are cowards. And they know they don’t have to. They will send a letter declaring fines will be assessed and continue to rise until the weapons on the 4473 are surrendered. They will threaten foreclosure, seizure of other properties, bank accounts, etc. Fudds will give in. It won’t stop till many stand up.

swmft
swmft
9 hours ago
Reply to  Arizona

it wont stop till people block them when they try to take someones property, and arrest cops for doing illegal things citizens oversight boards are quashed because the police they want are jackboots not protect and serve . we are headed to a full blown civil war make sure you own what will defend you and yours

Mystic Wolf
Mystic Wolf
7 hours ago
Reply to  swmft

Remember that quid-pro-joe will always back a communist government, as a result quid-pro-joe has only hate for the rights the people of this country have, he will do anything to quash all of our rights under the heavy boots of either a socialistic or communistic government. Just watch what quid-pro-joe does and what he says, this guy says one thing and does just the opposite.

Sisu
Sisu
6 hours ago
Reply to  Arizona

Perhaps you are correct in your assessment. But, I suspect history is a better benchmark for the future than “hope”. Here is an essay from the year 1548:

https://en.wikisource.org/wiki/Discourse_on_Voluntary_Servitude

Neanderthal75
Neanderthal75
4 hours ago
Reply to  Arizona

I’ve been saying the same thing forever: before they start going door to door which they will at some point, the doj will initially use financial pressures, severe financial pressures, and direct confiscations from people’s bank accounts. Although, I would argue that they would initially very well forgo taking money directly from bank accounts and instead Levy huge liens on homes, 401ks, with a massive amount of penalties and interest accruing day by day! Those financial attacks will perk people’s ears up even more than door to door, because when it gets to the door to door it presents some… Read more »

gregs
gregs
23 seconds ago

they don’t give a sh1t about our rights, they are leftists and leftist don’t care about others rights. they only care about what they want.

Roland T. Gunner
Roland T. Gunner
1 day ago

It is time for a major overhaul of federal government; a candidate who understands his support is contingent upon his following the Constitution, and enforcing same throughout the land. And making the broad, sweeping changes Trump could not or would not do.

swmft
swmft
8 hours ago

would not trump is from nu yak moderate democrat at best. we need someone who can read constitution and close illegal departments in the government ,atf is supposed to be taxing arm not control this making rules shi needs to stop the gun is sold local they are out of the picture only control interstate commerce the states are given right to intrastate control not feds