Red flag laws allow courts to revoke Americans’ gun rights without due process if someone believes they are a danger to themselves or others. The New York Supreme Court (which, confusingly, is not the state’s highest court, but rather the Court of Appeals) ruled in an as-applied case in New York state that the Empire State’s red flag law is unconstitutional.
The decision only applies to the individual in this case, but it represents a shift in legal precedent. In fact, it may signal the end of red flag ex parte orders, which are issued without giving the respondent an opportunity to defend himself or herself.
Here is more from the Epoch Times:
The New York law that enables the confiscation of guns from people who haven’t committed a crime is unconstitutional, a state Supreme Court judge has ruled.
This red flag law, or the Extreme Risk Protection Order law, lets individuals—including police officers—petition a court to allow the seizure of firearms from a person they believe poses a threat to themselves or others.
If a judge agrees, the judge can direct law enforcement to take guns from the person in question.
The law, which took effect in 2019, has led to the issuance of more than 1,900 removal orders.
However, the law is in violation of the U.S. Constitution’s Second and 14th amendments because it doesn’t “sufficiently protect a citizen’s rights,” state Supreme Court Judge Thomas Moran said in a ruling in late December 2022…
In addition, under the U.S. Supreme Court’s standards in its 2022 ruling striking down New York’s concealed carry law, the red flag law doesn’t fit under the nation’s tradition of regulating firearms, the judge said.
The majority said in the 2022 decision that the Constitution protects people’s rights to carry firearms and that a government must, for each gun restriction, “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”
“This Court is not unmindful of the dangers firearms may pose when possessed in the hands of a person suffering a mental illness, harboring a criminal intent, or both. However, when viewed objectively, [the law’s] goal of removing weapons from the otherwise lawful possession of them by their owners, without adequate constitutional safeguards, cannot be condoned by this Court,” Moran added. “While some may advocate that ‘the ends justify the means’ in support of [the law], where those means violate a fundamental right under our Bill of Rights to achieve their ends, then the law, on its face, cannot stand.”
If nothing else, this New York Supreme Court decision should offer a roadmap for a facial challenge to strike down the law state-wide.