Tuesday, August 1, 2023

Legislators Confront DOJ Regarding Tax Implications of Red Flag Laws

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In March, the NRA-ILA cautioned members about the 2022 comprehensive federal gun control legislation, also known as the Bipartisan Safer Communities Act (BSCA). This act sees US taxpayers supporting Red Flag gun confiscation orders at state level. On July 25, a collective of federal legislators, under the leadership of Sen. Roger Marshall (R-Kans.) and Rep. Alex Mooney (R-W.V.), sent a letter to the U.S. Department of Justice (DOJ) seeking clarification on the use of federal resources in promoting state Red Flag initiatives.

A portion of the BSCA allows the DOJ's Byrne State Crisis Intervention Program (SCIP) to offer grant funding for states to implement "extreme risk protection order" laws, commonly known as Red Flag gun confiscation orders. Currently, 21 states and Washington, D.C., have implemented Red Flag laws, while a number of pro-gun states have outright dismissed the idea, raising concerns about due process.

During the BSCA talks, some proponents of the bill argued that to be eligible for grant funding, state Red Flag programs would need to meet stringent due process requirements. Senator John Cornyn (R-Texas), a supporter of the BSCA, stated on his Senate website that the bill would compel states with Red Flag laws to implement stringent and complete due process protections before qualifying for grant funding.

However, it appears from the DOJ's grant awards that the department believes existing state Red Flag laws meet the BSCA’s due process prerequisites, rendering this language essentially meaningless. Regardless of the specific language demanding pre-deprivation due process, grants are being awarded to states with ex parte Red Flag procedures, which allow the government to seize an individual’s firearms and nullify their Second Amendment rights without prior notice or a hearing.

The lawmakers expressed in their letter that the DOJ appears to have manipulated the Bipartisan Safer Communities Act to unlawfully finance ineligible 'red flag' laws. They further argued that no existing 'red flag' gun confiscation law in the country provides sufficient and constitutional due process protections for gun owners, and none of them meet the minimal due process protections required by the BSCA.

They also voiced concerns about the possibility of the BSCA SCIP funding being used to coerce states into adopting Red Flag legislation. Gun owners and elected representatives must be vigilant to prevent this from happening. However, the BSCA does specify that these funds can be used for programs unrelated to gun control.

It's crucial that these funds are not misused. Pro-gun jurisdictions could ensure that the available funds are not used for implementing unconstitutional Red Flag gun confiscation plans by applying and receiving SCIP funding for legitimate non-gun control purposes.

For example, Montana has clearly stated that it will not use its almost $1.4 million SCIP funding for gun control. The state confirmed that its SCIP funding will be focused on specialized court-based programs such as drug, mental health, and veterans’ treatment courts.

Sen. Marshall and Rep. Mooney requested a response from the DOJ to their concerns by August 18. The NRA-ILA is looking forward to the department's response.

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