By: José Niño
Pro-gun organization Second Amendment Foundation recently announced the launch of a project with the main goal of challenging so-called “red flag” gun confiscation orders. These laws have been fervently opposed by pro-Second Amendment advocates for their perceived violations of due process rights.
SAF has dubbed this plan “Capture the Flag.” This plan is taking on laws in six states such as California, Florida, Maryland, Massachusetts, New Jersey, and Washington. In total, there are 21 states and the District of Columbia where these laws have been adopted.
The rollout of this plan came a few days after SAF filed what is expected to be the first of a series of federal lawsuits challenging red flag laws. For example, SAF and one of its members, Donald S. Willey, a Marine Corps veteran, filed a federal lawsuit taking on Maryland’s red flag law, which was enacted five years ago.
This lawsuit was filed in the US District Court for the District of Maryland, Northern Division. The defendants for this case include Maryland Attorney General Anthony G. Brown, Dorchester County, Dorchester County Planning and Zoning Director Susan E. Webb, and Dorchester County Sheriff James W. Phillips.
SAF Executive Director Adam Kraut explained that “SAF’s ‘Capture the Flag’ initiative looks to challenge these laws that deprive individuals of their right to keep and bear arms, where appropriate, based on evidentiary standards that are constitutionally impermissible.”
He noted that the “fundamental flaw” in all these laws is that they effectively deem people guilty until proven innocent. Per Kraut, such a law is “diametrically opposed to the way our criminal justice system is supposed to work, where the burden of proof is on the state, not the individual.”
“When any citizen is unjustly deprived of his or her rights, it is an affront to all of us,” Kraut stated, “and we must do whatever we can to prevent it, including challenges of such laws in federal court. ‘Capture the Flag’ provides the means for us to seek out such cases and take appropriate action.”
With respect to the federal lawsuit in Maryland, which is 40 pages long, authorities in Dorchester County have “relentlessly pursued Willey for de minimis nuisance and zoning infractions.” Put simply, Willey was being harassed for committing small infractions.
This legal dispute was escalated earlier in 2023 when Webb allegedly filed a red flag complaint against Willey.
The lawsuit claims that the “red flag” law in Maryland has been weaponized against Willey. Per the lawsuit, “Webb’s false RFL petition against Willey—a decorated combat veteran who selflessly served the United States of America as a Marine with distinction and honor for over twenty-five years across multiple tours of duty—was ultimately dismissed, but the damage had already been done: as a result of Webb’s false petition, a state District Court judge issued an ERPO [Extreme Risk Protection Order] against Willey based on the vague ‘reasonable grounds’ standard. Next, Phillips’s deputies served the ERPO on Willey at his home, leaving Willey with no realistic choice except to surrender to the state’s show of authority by handing over his firearms and ammunition, on pain of arrest and criminal penalties. The deputies, invoking a related provision of the RFL, then forced Willey to endure an involuntary, torturous, and traumatizing mental health evaluation at a local hospital.”
“During this Kafkaesque ordeal,” the lawsuit claimed, “Willey experienced deprivation of his fundamental constitutional rights and basic human dignity; the ordeal also demonstrated that the Maryland RFL unquestionably infringes upon the fundamental constitutional rights of all individuals who own or otherwise possess firearms in Maryland, by authorizing seizure of their firearms and ammunition on less than ‘probable cause’ and by denying them their right to keep and bear arms in a manner that is without historical analogue.”
Red flag gun confiscation orders have largely become fixtures in blue states such as Maryland. The state is ranked in 44th place according to Guns & Ammo magazine’s “Best States for Gun Owners” rankings, thereby making the passage of gun control legislation like red flag gun confiscation orders pretty much a sure thing.
Given how deeply blue Maryland’s state government is, the likelihood legislative repeals of gun control legislation will occur is slim to none. In turn, the only option left for gun owners is to use the courts to reverse such measures. Not exactly ideal, but it’s the most effective way of throwing a wrench in Gun Control Inc.’s agenda.
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. Subscribe to his Substack newsletter here.