Two Kansas legislators have pre-filed a bill they hope will protect Kansans from so-called “red-flag” laws, sometimes called “extreme risk protection orders.” The red-flag laws are on the books in 17 states and allow an individual who thinks someone might be a danger to others to petition a judge to remove their firearms.
The order can be fought in court but only after a citizen’s gun is confiscated, which opponents have called a violation of the Fifth Amendment. Accused citizens have no opportunity to defend themselves before a judge makes the determination to issue the order.
Red-flag opponents say such laws violate the second, fourth and sixth amendments as well.
Kansas State Senator Richard Hilderbrand (R-Baxter Springs) is one of the co-sponsors of the bill and said the purpose is to guarantee constitutional rights to Kansans.
“If a red-flag law is passed by the federal government and, your neighbor says …’you’re a risk to society and you no longer deserve a gun’ (you should) get the opportunity to confront your accuser,” he said.
Kansas State Representative Mike Houser (R-Columbus) agreed red-flag laws are a violation of multiple areas of the Bill of Rights and expressed concern as well
“All it takes is somebody, and it can be an anonymous call … saying ‘hey, I’m worried about ol’ Mike Houser … he’s got a bunch of those black rifles, I saw him loading one in the truck the other day … I’m worried about my safety,'” Houser said. “That doesn’t mean they’re going to act on it, but that’s all it takes to get the wheels in motion.”
The bill reads, in part:
“The legislature hereby preempts the entire field of legislation in this state concerning in any way federal or state extreme risk protection orders that have been issued against a citizen of Kansas. No city, county or other political subdivision of this state shall enact any ordinance, resolution or regulation providing for extreme risk protection orders nor enforce or aid in the enforcement of any extreme risk protection order issued pursuant to federal law or the laws of another jurisdiction.”
The pre-filed bill, which Hilderbrand said was based on a similar law in Oklahoma, was rewritten by the Revisor of Statutes and Hilderbrand said the revisor did not bring any potential questions of constitutionality to his attention.
This is a concern as a 2013 law, the Kansas Second Amendment Protection Act, sought similarly to preempt federal gun laws and ended with two Chanute men convicted of federal firearms charges — and in June of last year the United States Supreme Court declined to hear an appeal of those convictions.
Houser and Hilderbrand both complained that, in that case, Attorney General Derek Schmidt declined to defend the Kansas law.
Hilderbrand also acknowledged that the bill is largely symbolic as even if both houses of the Legislature pass it, Democratic Governor Laura Kelly is unlikely to sign it.
“I have no false hope that she will sign it, she will veto it,” he said. “We would have to override it.”
