Sen. Lindsey Graham (R–S.C.), who plans to introduce a bill that would provide grants to encourage the passage and enforcement of so-called "red flag" laws, recently defended such statutes against the complaint that they suspend people's Second Amendment rights without due process. His arguments were more than a little misleading.
"There are plenty of judicial proceedings every day in America where somebody is adjudged to be a danger to themselves and others and they're put into a mental health facility," Graham told Fox News anchor Martha MacCallum. "That goes on all the time, so that process would apply to gun ownership…We have judicial hearings all over America every day, dealing with people who become a danger to themselves and others, and this is just an extension of that concept."
Graham did not mention that the standards for involuntary psychiatric treatment are notably stricter than the standards for taking away people's guns under red flag laws. Under Florida's Baker Act, for example, the state has to show by clear and convincing evidence "a substantial likelihood" that a candidate for commitment, because of "mental illness," will "in the near future…inflict serious bodily harm on self or others, as evidenced by recent behavior causing, attempting, or threatening such harm."
Florida's red flag law, by contrast, authorizes a judge to issue a final gun confiscation order, which lasts up to a year (and can be extended), when there is clear and convincing evidence that "the respondent poses a significant danger of causing personal injury to himself or herself or others." No psychiatric diagnosis is required, "significant danger" is undefined, the purported threat need not be imminent, and the judge "may consider any relevant evidence." Those permissive standards help explain why Florida judges issue final "risk protection orders" 95 percent of the time.
"Nobody's going to lose their gun unless they have their day in court," Graham assured MacCallum. That is simply not true. All 17 states with red flag laws (and the District of Columbia) allow judges to issue preliminary gun confiscation orders without giving the respondent a chance to rebut the claims against him. The maximum length of such ex parte orders ranges from a week in Nevada to six months (for "good cause") in Maryland. Fourteen days is the most common limit.
Those limits are not necessarily followed in practice. While Indiana notionally requires that a hearing be held within 14 days of a gun seizure, a 2015 study found that gun owners waited an average of more than nine months before a court decided whether police could keep their firearms.
In some states, the standard for ex parte orders is minimal. New York requires "probable cause" to believe the respondent is "likely to cause serious harm" to himself or others. Other states are stricter. Vermont requires showing by "a preponderance of the evidence" that the respondent poses "an immediate and extreme risk." The experience in Florida and Maryland suggests that judges almost always agree to issue ex parte orders.
An honest defense of red flag laws would grapple with these issues. But Graham prefers to pretend they do not exist. Dismissing critics of red flag laws as "libertarians," he told MacCallum "the Second Amendment is not a suicide pact," which is the sort of thing politicians say when they find constitutional rights inconvenient.