Red Flag Gun Laws, Unlawful Search and Seizure, and the Second Amendment


Law enforcement, legislators, and the general public have struggled to reduce gun violence without infringing upon Americans’ constitutional rights. Due in part to the internet, constant media coverage of mass shootings has convinced many to trade elements of their Second Amendment rights for greater safety.

A recent phenomenon in both state and federal governments, for example, is the red flag gun law, which allows courts to take guns away from allegedly dangerous people. Typically, family or community members will file a petition or inform police of someone they believe poses a danger to themselves or others. The court can then order police to confiscate firearms and/or ammunition from that person without conducting a hearing. Later, when a hearing does occur, the government or petitioner need not prove anything beyond a reasonable doubt or prove that you will commit a crime or that the person needs to be mentally committed.

A significant portion of states has passed variations of the red flag gun law. While some researchers believe the legislation has prevented a small percentage of suicides, many doubt the effectiveness of the law and question whether any small gain is worth compromising the rights of someone who has not committed a crime.

The Revitalized Fight for the Second Amendment

Meanwhile, proponents of the right to bear arms have taken a stronger stand against potential infringement. Pennsylvania justices, for example, recently overturned a doctrine that historically allowed law enforcement to detain and investigate a person solely because they were carrying a gun.

In 2014, this doctrine came into play when a camera operator at an Allentown gas station spotted a man tucking a gun into his waistband. The camera operator called the police, who subsequently stopped the man and discovered that he was fully licensed to carry the gun—but they arrested him anyway for drunk driving. He was later convicted, but the Pennsylvania Supreme Court dismissed the case because the legal doctrine allowing police to stop him in the first place violated Fourth Amendment protections against unreasonable search and seizure.

Justice David Wecht of the Pennsylvania Supreme Court explained that police cannot assume without reasonable cause for suspicion that someone is breaking the law. This is the same principle that prevents police from pulling over a vehicle simply to check if the driver is licensed. Thus, a police officer who sees someone carrying a gun cannot assume they are doing so without a license to carry.

Lehigh County Court appealed Pennsylvania’s decision, but the U.S. Supreme Court declined to hear it, effectively affirming the state’s decision. Because the court dismissed his case, the defendant no longer faces a suspension of his driver’s license.

Learn More About Your Rights Today

Under Hawaii law, a court can issue an order to take your firearms and ammunition away or prevent you from accessing them if someone successfully accuses you of posing a danger to yourself or someone else. However, this law is under intense scrutiny in both Hawaii and across the United States. If your constitutional rights have been violated either by someone you know or local law enforcement, you deserve dedicated advocacy backed by years of legal experience.

At The Law Office of Kevin O’Grady, LLC, I am deeply committed to defending my clients against criminal charges and protecting their Second Amendment rights. In a time when American citizens and legislators alike are questioning the validity of the right to bear arms, I will stand by your side to help you fight for your freedom as though it were my own.

Learn more about my firm by calling (808) 521-3367 or schedule your consultation to get started on your case today.

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