By: José Niño
One of the most insidious aspects of the 2022 omnibus federal gun control bill, euphemistically known as the Bipartisan Safer Communities Act or BSCA, is how it forces the American taxpayer to fund “red flag” gun confiscation orders being implemented at the state level.
On July 25, 2023, Sen. Roger Marshall (R-KA) and Rep. Alex Mooney (R-WV) spearheaded an effort, alongside several other elected officials, to send a letter to the Department of Justice inquiring about how United States taxpayer dollars are being used to promote red flag gun confiscation orders at the state level.
The BSCA allocated grant funding via the DOJ’s State Crisis Intervention Program (SCIP) to states for the purpose of implementing “red flag” gun confiscation orders. At the moment, 21 states and Washington, D.C. have red flag gun confiscation orders in effect. By contrast, except for Florida and Indiana, red states have largely opposed red flag gun confiscation orders.
Throughout BSCA negotiations, several supporters of the bill argued that for states to be eligible to receive grant funding, state red flag gun confiscation orders would have to comply with rigid due process requirements. BSCA booster and notable Second Amendment sell-out Sen. John Cornyn (R-Texas) made a post on his website explaining why he supported this legislation. He claimed that “[t]his bill would force states with red flag laws to adopt strict and comprehensive due process protections before they qualify for the grant funding.”
The legislation’s text featured the following language that supposedly constrained the ability for states to receive funding for their red flag gun confiscation orders:
“(iv) extreme risk protection order programs, which must include, at a minimum–
(I) pre-deprivation and post-deprivation due process rights that prevent any violation or infringement of the Constitution of the United States, including but not limited to the Bill of Rights, and the substantive or procedural due process rights guaranteed under the Fifth and Fourteenth Amendments to the Constitution of the United States, as applied to the States, and as interpreted by State courts and United States courts (including the Supreme Court of the United States). Such programs must include, at the appropriate phase to prevent any violation of constitutional rights, at minimum, notice, the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses;”
However, the actual record of the DOJ’s grant awards point to the federal government liberally rewarding grants to blue states with red flag gun confiscation orders on the books. We should not forget what’s at stake with respect to red flag orders. These consist of measures that grant law enforcement the power to seize an individual’s firearms for allegedly posing a threat to themselves or others without any form of due process.
In this letter, the concerned elected officials alluded to how “[t]he Department of Justice appears to have weaponized the Bipartisan Safer Communities Act to illegally fund ineligible ‘red flag’ laws.” The letter detailed how “every ‘red flag’ gun confiscation law in this nation lacks sufficient and constitutional due process protections for gun owners,” and that the minimum due process protections the BSCA allegedly calls for “are not in effect in a single state’s existing ‘red flag’ law statutes.” Additionally, the elected officials observed that since “the passage of the Bipartisan Safer Communities Act, no states have revised their statutes to comply with the ‘due process’ requirements imposed by the 117th Congress.”
Another matter the letter touched on was the threat of BSCA SCIP funding being used to bribe states into implementing red flag orders. Sen. Marshall and Rep. Mooney demanded that the DOJ issue a response to their letter by the deadline of August 18 or earlier.