In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. – The Bill of Rights
A red flag law is a so-called gun violence prevention law that permits police or family members to petition a state court to order the removal of firearms from a person who may present a danger to others or themselves.
Opponents of red flag laws argue that such legislation infringes on the constitutional right to bear arms and the right to due process of law, and object to ex parte hearings. An ex parte decision is one decided by a judge without requiring all of the parties to the dispute to be present. Based on a mere accusation, a law-abiding gun owner is subjected to an “ex parte” hearing (a secret court proceeding in which the gun owner is not allowed to offer any exonerating evidence and isn’t even informed of the hearing, let alone be entitled to defense of counsel).
Red Flag laws clearly violate the presumption of innocence principle that one is considered innocent unless proven guilty. It was traditionally expressed by the Latin maxim ei incumbit probatio qui dicit, non qui negat (“the burden of proof is on the one who declares, not on one who denies”). In the case of individuals posing a threat to others or themselves, there should FIRST be an opportunity for that person to defend himself BEFORE depriving him of his property, i.e. due process.
As of 2021, 19 states and the District of Columbia have enacted some form of red-flag law. The specifics of the laws, and the degree to which they are enforced, vary from state to state with the specific provisions of who may petition for a risk protection order.