By: José Niño
The New York Supreme Court dealt a blow to red flag gun confiscation orders by ruling that due process rights must be taken into account when these orders are enforced. This ruling specifically undermined New York Governor Kathy Hochul’s executive order that enforces the red flag gun confiscation measures.
One of the dangers that Second Amendment advocates have warned about red flag orders is how they violate due process. Specifically, these orders give law enforcement the power to seize an individual’s firearms if they are viewed to be a threat to themselves or others around them. All of that is done without the plaintiff first having to make their case before the court — a total violation of due process.
In the case of New York, the court mandates that any “red flag” order must come with a physician or psychiatrist’s determination that the individual in question poses a threat to themselves or others. Larry Keane, the Senior Vice President for Government and Public Affairs at the National Shooting Sports Foundation (NSSF), noted that this is “already part of New York’s laws.” The court noted that New York’s Mental Hygiene law says, “… a person’s liberty rights cannot be curtailed unless a physician opines that a person is suffering from a condition ‘likely to result in serious harm.’ Further, to extend any such curtailment of liberty beyond 48 hours, a second doctor’s opinion must be obtained, and such an opinion must be consistent with the first doctor’s opinion.”
This was in stark contrast to how Hochul wanted New York’s gun confiscation scheme to be implemented. Under Hochul’s executive order, a district attorney, a family or household member, a police officer, a school administrator, or a school administrator’s designee — that can either be guidance counselors or school social workers — can petition for red flag orders. In addition, there was no requirement for a licensed medical professional to provide an opinion on the mental state of the individual having their firearms confiscated.
This executive order mandated state police to file “red flag” orders on individuals “… when there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself, or others…” However, with the New York Supreme Court’s recent ruling the supporting documentation must feature a medical professional’s determination. Moreover, the Court acknowledged that Second Amendment rights are basic individual liberties, and the state must jump major hoops when pursuing measures that deprive individuals of their right to bear arms.
“Second Amendment rights are no less fundamental than… Fourth Amendment rights (the right to liberty), and must be provided the same level of due process and equal protection,” Judge Craig Steven Brown wrote in the court’s opinion.
This is a good development for gun owners in the Empire State. New York is one of the most anti-gun states in the country. According to Guns & Ammo Magazine’s best states for gun owners rankings, New York is dead last at 51st place. The District of Columbia and 19 states have red flag laws on the books. It’s one of Gun Control Inc’s preferred legislative projects.
Any way that these measures get undermined by the political process should be welcomed by gun owners. At certain points, state legislatures won’t be capable of pushing back against the anti-gun agenda. So, it will take legal action in the courts to halt gun grabs and even roll back previously implemented anti-gun schemes.
That’s how the fight against gun controllers must be fought if gun owners want to restore their Second Amendment freedoms.
José Niño is a freelance writer based in Austin, Texas. Contact him via Facebook, Twitter, or email him at [email protected]. Get his e-book, The 10 Myths of Gun Control, here.