Big Sky Country won’t allow temporary gun confiscation orders at the state or local level.
On Monday, the Montana Legislature sent HB809 to Republican Governor Greg Gianforte’s desk. The bill bars localities from implementing their own Extreme Risk Protection Orders (ERPO), commonly called Red Flag laws, or accepting grants to pursue them. The state doesn’t have a Red Flag law, and, if the bill is signed into law, none of its cities or towns will be allowed to consider their own.
“The governor will carefully consider any bill that makes it to his desk and will always firmly defend the Second Amendment rights of Montanans,” Kaitlin Price, Governor Gianforte’s press secretary, told The Reload when asked if he plans to sign the bill.
The bill represents the most aggressive pushback against Red Flag laws since they gained renewed popularity in the wake of the 2018 Parkland shooting. The proposals garnered some bipartisan support around that time, with Florida Republicans passing one into law and dozens of other states adopting them over the next few years. However, support for Red Flag laws has become increasingly polarized over time, and few states that haven’t already adopted them appear likely to do so in the near future.
21 states and the District of Columbia have some kind of ERPO process, according to the University of Michigan Institute for Firearm Injury Prevention.
ERPOs generally allow the state to legally confiscate firearms from someone deemed a threat to themselves or others. They require a judicial determination, and their enforcement is time-limited–usually to a year or less. However, they also don’t require the higher level of proof that criminal hearings do, and can even be issued before the subject of the order has had a chance to defend themselves in court or even been made aware of the accusations against them.
Red Flag laws’ lesser due-process protections are a common sticking point for their critics. Republican Representative Braxton Mitchell, who sponsored the bill, argued that lower standard represents a violation of people’s gun rights.
“The bottom line, you cannot strip constitutional rights based on accusations alone,” Mitchell said at a committee hearing earlier this year, according to The Electric. “If someone is truly dangerous, they should be charged, tried, and convicted, not disarmed through judicial tyranny.”
The National Rifle Association, which backed the bill, agreed.
“Red flag laws allow governments to seize firearms based on weak and nebulous standards of evidence and implement ex-parte hearings that would suspend an individual’s Second Amendment rights without due process,” the group said in a statement. “NRA thanks lead sponsor Representative Mitchell, all legislators who supported this bill advanced through the legislature, and all NRA members and fellow Second Amendment advocates who engaged with their legislators in support of this bill.
Proponents of Red Flag laws argue that they use an evidentiary standard similar to other significant legal proceedings, like some restraining orders. Kelsen Young of the Montana Domestic and Sexual Violence Coalition, who spoke against the bill at the committee hearing, said the orders can help prevent suicide and domestic violence.
“In some situations, we really do believe that ERPO orders would be helpful, especially in regards to families that are experiencing violence as it relates to mental health,” Young said, according to the publication. “And so for that reason, and also because we believe strongly in local control for these issues, we oppose this bill.”
