The “Bipartisan Safeer Communities Act,” which was signed last week by President Joe Biden, is now considered to be the law of the land. More precisely, it’s found in a provision of the law that deals with ERPOs, that are also known as “Red Flag Laws.” It is clever wording that allows judges to disregard constitutional rights that are suppose to protect against abuse of these hazardous laws.
The bill, which is eighty-one pages long, is relatively short by the standards of today when bills several hundred pages long aren’t uncommon.
When a reader has gotten well into the bill’s text they will see that the “Firearms” measures are set out in detail, and that this is where the actual problem becomes obvious: if you look carefully at the sections regarding ERPOs.
As is standard practice for federal law, S.2938 does not command that states or municipalities enact red flag laws. It accomplishes this by providing funding to states so that they can fulfill the demands of the federal government. Uncle Sam understands that local and state governments will take any opportunity to get federal money, even if it comes with strings attached.
In this case, the “bipartisan” bill (fourteen House Republicans teamed up with fifteen of their Senate counterparts) allows Byrne grants, which are a way for funding criminal justice initiatives since 1988, to create “ERPO programs.” This approval is associated with a list of the “due process rights” that are linked to such awards. This excellent language is broad, stating that no program may “infringe on or violate the United States Constitution, including the Bill of Rights.”
A skeptic or casual reader would probably exhale with relief after a brief perusal of this language. The list of constitutional rights, that include those listed in the Bill of Rights, might appear to be enough to prevent an individual’s guns from being taken without any chance to be heard and offer proof against such a drastic and, in most cases, unconstitutional seizure. Indeed not.
Subsequent to the list of explicit constitutional protections that any ERPO created with Byrne grant money must follow is a conceivable exception that is wide enough to allow a “Mack truck” to go through; it is a side door for which a judge that has been given a form for a “risk prevention” order may justifiably ignore them altogether, at least for the time being.
The following is the potential snag: all of the procedures outlined and intended specifically to “stop any breaking of constitutional rights,” must be taken only at the right phase or “phases” of such legal proceedings. It takes no genius or rocket scientist to figure out where this judicial “safety valve” might lead.