Red-flag laws allow police to seize firearms from a person if a judge deems him or her to be a threat to himself or others, even if that person has not been convicted of a crime, charged with a crime or even accused of a crime.
The laws passed the General Assembly when Democrats had control of both chambers and were signed by former Democratic Gov. Ralph Northam. The legislation received staunch opposition from the Republican minority at the time.
Virginia judges have issued at least 327 emergency substantial risk protection orders, which allow police to temporarily confiscate firearms to address an immediate risk.
Judges have issued 257 permanent substantial risk protection orders, which confiscate the guns permanently, unless overturned through the court system.
The statistics run from July 1, 2020, when the law went into effect, through August 2022. They do not state how many guns were confiscated from the individuals.
Gun-rights groups have been critical of the law ever since it was proposed because of how much authority is granted to a judge and because a person might have his guns seized before he has a chance to defend himself in court.
“Red Flag laws are an invention of the gun-control crowd and are unconstitutional due to their usurpation of Due Process,” Philip Van Cleave, the president of the Virginia Citizens Defense League, told The Center Square.
“Red Flag laws are an easy way for [the] government to confiscate guns without getting a person any help or giving the person a chance to defend against any false accusations for up to two weeks,” Van Cleave said. “The person has no idea that they have been accused of anything until the police show up at their door to get their guns.”
Van Cleave said the commonwealth already has two better laws in place: the temporary detention order and the emergency custody order.
These laws allow magistrates to temporarily detain a person who may be a risk to himself or others due to a problem with mental illness and provide them with mental health services.
Red-flag laws, he noted, do not even direct people to mental health treatment after confiscating their firearms.
Erich Pratt, senior vice president of Gun Owners of America, told The Center Square that these laws are contrary to due process protections.
“Red Flag gun confiscation orders turn our legal system on its head,” Pratt said.
“For centuries, the standard has been ‘innocent until proven guilty,’” he continued. “But Red Flag laws reverse that standard into ‘guilty until proven innocent,’ because they throw real Due Process out the window—revoking someone’s Second Amendment rights without a jury trial or right to counsel.”
Pratt pointed out the obvious, yet paradoxical, fact that the law was most likely to infringe on the rights of law-abiding citizens and not those it was designed to prevent.
“Not surprisingly, at least a third of red flag orders are initiated against innocent people—and the guns which are erroneously confiscated can take up to nine months to return,” he said. “These laws have even been used to disarm women—such as the case in California where a cheating husband used the state’s red flag law to disarm his wife, who was a concealed carrier.”
Republicans have introduced legislation to repeal red-flag laws in Virginia, but have been unsuccessful. Although the state now has a Republican governor and a Republican-controlled House of Delegates, the Senate has a Democratic majority.