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Oklahoma Reps Bice, Cole and Lucas Vote Yes on Unconstitutional Red Flag Law

Oklahoma Representatives Stephanie Bice, Frank Lucas, and Tom Cole have voted Yes on HR4350, the National Defense Authorization Act for Fiscal Year 2022. The vote totals were 181 Democrats & 135 Republicans voting Yes and 38 Democrats & 75 Republicans voting No. Part of this $777.9 billion authorization contains a provision that would allow military courts to use protective orders that include red flag gun confiscation.

If you aren’t familiar with them, a red flag law is a gun control law that allows a family member or law enforcement to petition to the courts to order the temporary removal of all firearms that a person possesses if the court agrees with the petitioner that the person may present a danger to themselves or others. This petition and granting of a removal order could be done completely without notice to the person possessing the firearms and that person would be given no opportunity to respond until after their firearms are confiscated.

American Military News – A provision in the 2022 National Defense Authorization Act would allow military courts to issue protective orders that include “Red Flag” gun confiscation, according to the more than 1,300-page bill.

In the legislation, those beholden to the United States Code of Military Justice could be issued a “military court protective order” by a military judge or magistrate, which would make “possessing, receiving, or otherwise accessing a firearm” illegal.

“A military court protective order issued on an ex parte basis shall restrain a person from possessing, receiving, or otherwise accessing a firearm; and a military court protective order issued after the person to be subject to the order has received notice and opportunity to be heard on the order, shall restrain such person from possessing, receiving, or otherwise accessing a firearm in accordance with section 922 of title 18,” SEC. 529 of H.R. 4350 states.

Additionally, military court protective orders issued on an emergency basis are exempted from providing the recipient with the standard “right to due process.” Instead, “notice and opportunity to be heard” must only be provided after an order was already issued.

“EMERGENCY ORDERS.—A protective order on an emergency basis may be issued on an ex parte basis under such rules and limitations as the President shall prescribe,” the section continues. “In the case of ex parte orders, notice and opportunity to be heard and to present evidence must be provided within a reasonable time not to exceed 30 calendar days after the date on which the order is issued, sufficient to protect the respondent’s due process rights.”

Gun Owners of America (GOA), a pro-Second Amendment gun rights advocacy group, warned the military gun confiscation orders could provide lawmakers with a precedent to extend the rule to the general population.

“Like the proverbial camel’s nose in the tent, allowing this provision to remain in a bill pertaining to the military will eventually work its way into legislation applying to the rest of the population,” GOA wrote. “That’s why we need to raise our voices in unison against these gun confiscation orders.”

“Again, this is just the foot in the door. If Nancy Pelosi gets this into the military code, then it becomes the ‘precedent’ for enforcing gun confiscation against the rest of the population,” the group continued. “Seizing firearms first and ‘getting the Due Process later’ will never constitute sufficient Due Process, no matter how much anti-gunners may pretend it does.”

Earlier this year, President Joe Biden urged Congress to pass a federal “red flag” gun confiscation law.

“The President urges Congress to pass an appropriate national ‘red flag’ law, as well as legislation incentivizing states to pass ‘red flag’ laws of their own. In the interim, the Justice Department’s published model legislation will make it easier for states that want to adopt red flag laws to do,” a White House said in a statement.

This is yet another attempt by the gun grabbers to incrementally add laws to the books that allow the government to take people’s firearms away from them with absolutely no opportunity to respond and prevent the confiscation. People who write these laws have apparently never read the Fourth and Fifth Amendments to the Constitution.

Fourth Amendment – The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment – No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Perhaps the gun grabbers see “due process of law” differently, but I fail to see how forcibly taking someone’s property before giving that person an opportunity to oppose the seizure is constitutional. The Supreme Court agrees.

Libertas Institute – Feeling irrationally angry after an argument with his wife in 2015, the police were called on firearm owner Edward Caniglia to perform a welfare check. He agreed to undergo a psychiatric evaluation at the hospital to determine suicidality on the condition that police not confiscate his guns.

Upon returning to his home, however, Caniglia found that the police had unconstitutionally searched his house and seized his firearms.

For the first time in 13 years, the Court upheld both privacy and gun rights, this time unanimously. Caniglia v. Strom’s 9-0 decision has the potential to create lasting effects and set precedent as powerful as was DC v. Heller in 2008.

Incredibly, after Caniglia sued the officers, the First District court ruled in favor of the police officers and incorrectly claimed the seizure was justified under a “community caretaking exception” to the Fourth Amendment. In essence, the court tried to equate the police stopping to help a disabled vehicle on the side of the road to an illegal search of a private residence.

Caniglia appealed his case until it was received by the Supreme Court in 2021. Justice Thomas succinctly expressed the majority opinion of all nine justices that such an overt violation of the Fourth Amendment was obviously unconstitutional.

The really interesting part of all this is that Oklahoma is the one and only state that has an anti-red flag law. Authored by Senator Nathan Dahm, R-Broken Arrow, SB1081 prohibits the state or any city, county, or political subdivision from enacting red flag laws. It also prohibits accepting any grants or funding to enact red flag laws. 

“As other states have expanded infringements on the Second Amendment and other rights protected in our U.S. Constitution through their ‘red flag’ laws, I’m thankful we have a governor who has committed to protecting and defending our rights by signing Senate Bill 1081, the Anti-Red Flag Act, into law,” Dahm said. “Whether it is passing constitutional carry or opposing these stealthy attempts at denying our due process, I’m honored to be continually leading the charge to defend the rights of Oklahomans and am pleased to see us be the first in the nation to pass this type of law.”

Even more interesting is that Bice was in the Oklahoma Senate in 2020 and she voted in favor of the bill.

So, to be fair here, is it possible that Bice, Lucas, and Cole did not know this red flag provision was in the NDAA when they voted for it? I suppose that is a possibility since it is a 1,300-page bill. There were 135 Republicans, including former Navy SEAL Rep. Dan Crenshaw, who voted Yea. People in Congress vote on bills all that time and have no clue what they say. But is that an acceptable excuse?

In Bice’s case, I will definitely not allow that excuse. Bice was able to get some changes made to the NDAA bill while it was still being considered by the House Armed Services Committee. She released a statement about the changes and her support for the bill.

“I’m proud of the work my HASC colleagues and I have put into the Fiscal Year 2022 National Defense Authorization Act that passed last night. Properly funding our military servicemen and women to defend our country and its allies must still take precedence. No bill is perfect, and I anticipate further negotiations to take place as this legislation moves through the process toward final passage. During this time, I will advocate for items of concern to be removed or modified.

Following the disastrous withdrawal from Afghanistan and the reclamation of that country by Taliban and ISIS, we must continue to invest in the technology, education and training necessary to keep the American warfighter at the ready. The Biden Administration must also be held accountable for its lack of action in Afghanistan, and this legislation does that.

But we must also see that the mental health and family needs of our soldiers are properly met, and I’m pleased that this legislation includes amendments that I put forth, including the bipartisan Protecting Military Families with Disabilities Act amendment and the mental health and suicide prevention amendment. While it is Congress’ duty to provide what our soldiers need to do their jobs, we must also properly support our servicemembers and their families when they return home.”

She and her staff were in this bill enough to know about this unconstitutional red flag provision, but she voted for it anyway. No, this is another instance of Bice and all the other Republicans who voted yes being willing to vote Yes on a horrendous bill because it has some things in it that they want. 

Whether or not this bill survives the Senate remains to be seen. Republican Senators might not be so willing to openly vote for a gun grabber provision now that everybody knows it’s in there. They will have no excuse. But, as far as I and all other 2nd Amendment supporters are concerned, Bice and all the House Republicans who voted Yea also have no excuse.

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