Nevada’s red flag law has been on the books for a few years now, but the more you learn about how it actually works, the more questions arise.
And they’re fair questions.
If the government can take someone’s guns away before they’ve been convicted of anything, people should be asking questions; we’re talking about a right singled out for specific protection in the Bill of Rights.
Red flag laws allow police to take firearms from someone a judge believes might be a danger.
On paper, that sounds like common sense. In real life, the process is far messier, especially here in Nevada.
Nevada Lowered the Bar — And Your Rights Paid the Price
One of the biggest concerns is the standard of proof.
In a criminal case, the government must prove guilt “beyond a reasonable doubt.” Everybody knows that.
It’s the highest legal bar we have, and for good reason.
We don’t take away someone’s freedom and a constitutional right unless the evidence is solid.
But Nevada’s red flag hearings don’t use that standard.
They use something called “preponderance of the evidence,” which basically means “more likely than not.”
That’s the standard we use for simple civil matters, like lawsuits over money.
In Nevada, that lower standard can now lead to a person losing their Second Amendment rights.
No Jury. No Lawyer. No Cross-Examination. Really.
Criminal cases guarantee a jury, an attorney, and the right to confront accusers. Red flag cases do not.
You don’t get a jury. You can hire your own lawyer, but you don’t get a court-appointed attorney if you can’t afford one.
You don’t even have the guaranteed right to confront and cross-examine the person making the complaint.
Nevada’s Red Flag laws allow complaints to reach a judge without the gun owner knowing anything about it – until police arrive at the door with a warrant demanding all firearms be surrendered.
We’d never accept that kind of process in any other case involving our liberty or property.
Those protections we expect when the government comes for our liberty or property simply don’t apply here.
But conveniently for those who don’t like guns and the people who have them, Nevada’s red flag system side-steps all of that.
Is there even a presumption of innocence here? Because it sure doesn’t look like it.
What Happens After the Hearing Could Follow Someone for Life
When a judge grants a red flag order, that order goes into the national NICS background check system.
That’s the same federal database used for every gun purchase, and you can’t buy a gun as long as it’s in there.
And once that’s on your record, it can follow you around forever.
And while the system can be updated or removed later if the order is lifted, experts say removing something from a federal database completely and permanently is a lot harder than it sounds.
Even the FBI acknowledges errors and incomplete deletions can happen.
When it comes to constitutional rights, “maybe it gets fixed” isn’t good enough.
Property Taken Without a Conviction
Nevada law requires firearms to be confiscated during a red flag order – and not just your guns, but every gun in the house.
If your wife owns a pistol for protection, that goes, too!
The government takes your lawfully owned property, leaving you and your family defenseless, even though you have not been convicted of anything.
And then there’s a whole different can of worms to open – what happens to your property next?
If the guns are held for months or years, or if they’re damaged or misplaced, is the owner reimbursed?
The state never gives a clear answer on that.
It’s difficult to imagine any other right being handled this way.
Would we ever preemptively revoke a journalist’s credentials because of what they might report?
Would we ever keep someone from owning a Bible, a Quran, or any other religious text because they “might” interpret it incorrectly?
Of course not.
The right to keep and bear arms isn’t a second-class right.
The Debate: Prevention vs. Constitutional Protection
Supporters of the law argue it can prevent suicide or domestic violence.
The Nevada Attorney General’s office has said red flag laws can help law enforcement intervene before tragedy strikes, and national data from the CDC shows suicide rates are highest in Mountain West states.
But safety shouldn’t come at the cost of due process.
Their claim is basically that since a gun can cause harm, you’re assumed to be someone who might use yours to do exactly that.
By those standards, every woman is equipped to be a prostitute, and every man equipped to be a rapist.
We all could potentially engage in such behavior, although I don’t believe the majority of us do.
But if every man is a potential rapist and every woman a potential prostitute, and we treat them the same way we’re treating gun owners – well, then we’d have to take away everyone’s rights, wouldn’t we?
Nevadans Deserve Safety. They Also Deserve Their Rights.
Most Nevadans believe in helping people in crisis. But they also believe in fairness and following the Constitution.
A process that strips someone of their rights,
- without a jury,
- without an attorney,
- without a chance to defend the charge,
- and to not even be notified of it in advance,
- without the highest burden of proof,
- and without clear protection for property,
is a process that sounds entirely un-American.
Nevada lawmakers need to take another look.
Protecting people should never come at the cost of weakening the very rights that make us free in the first place.
The opinions expressed by contributors are their own and do not necessarily represent the views of Nevada News & Views. Digital technology was used in the research, writing, and production of this article. Please verify information and consult additional sources as needed.
