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Military courts could order ‘red flag’ gun confiscation under defense bill

An AR-15 style rifle, shotgun, two 9mm handguns, magazines captured by the Philadelphia Sheriff's Office. (Philadelphia Sheriff's Office photo/Released)
September 23, 2021

A provision in the 2022 National Defense Authorization Act would allow military courts to issue protective orders that include “Red Flag” gun confiscation, according to the more than 1,300-page bill.

In the legislation, those beholden to the United States Code of Military Justice could be issued a “military court protective order” by a military judge or magistrate, which would make “possessing, receiving, or otherwise accessing a firearm” illegal.

“A military court protective order issued on an ex parte basis shall restrain a person from possessing, receiving, or otherwise accessing a firearm; and a military court protective order issued after the person to be subject to the order has received notice and opportunity to be heard on the order, shall restrain such person from possessing, receiving, or otherwise accessing a firearm in accordance with section 922 of title 18,” SEC. 529 of H.R. 4350 states.

Additionally, military court protective orders issued on an emergency basis are exempted from providing the recipient with the standard “right to due process.” Instead, “notice and opportunity to be heard” must only be provided after an order was already issued.

“EMERGENCY ORDERS.—A protective order on an emergency basis may be issued on an ex parte basis under such rules and limitations as the President shall prescribe,” the section continues. “In the case of ex parte orders, notice and opportunity to be heard and to present evidence must be provided within a reasonable time not to exceed 30 calendar days after the date on which the order is issued, sufficient to protect the respondent’s due process rights.”

Gun Owners of America (GOA), a pro-Second Amendment gun rights advocacy group, warned the military gun confiscation orders could provide lawmakers with a precedent to extend the rule to the general population.

“Like the proverbial camel’s nose in the tent, allowing this provision to remain in a bill pertaining to the military will eventually work its way into legislation applying to the rest of the population,” GOA wrote. “That’s why we need to raise our voices in unison against these gun confiscation orders.”

“Again, this is just the foot in the door. If Nancy Pelosi gets this into the military code, then it becomes the ‘precedent’ for enforcing gun confiscation against the rest of the population,” the group continued. “Seizing firearms first and ‘getting the Due Process later’ will never constitute sufficient Due Process, no matter how much anti-gunners may pretend it does.”

Earlier this year, President Joe Biden urged Congress to pass a federal “red flag” gun confiscation law.

“The President urges Congress to pass an appropriate national ‘red flag’ law, as well as legislation incentivizing states to pass ‘red flag’ laws of their own. In the interim, the Justice Department’s published model legislation will make it easier for states that want to adopt red flag laws to do,” a White House said in a statement.