Red Flag Law Hidden in National Defense Authorization Act (NDAA)

A red flag law that could be imposed on members of the U.S. military and their dependents is now one Congressional compromise away.

As the Democratic-controlled U.S. House of Representatives and the Republican-dominated U.S. Senate passed their versions of an approximately $740 billion defense spending bill, several provisions were bird-dogged by the Trump Administration as objectionable.

Among them was the expected opposition to a “diversity and inclusion” section in the House version and re-naming of military bases, which currently bear the names of Confederate leaders in both the House and the Senate versions. These elements received plenty of media attention.

But what went mostly unseen was the House bill’s red flag provision. Section 542 of the House’s version of the National Defense Authorization Act (H.R. 6395) gives authority for military judges and magistrates to issue ex parte protective orders whenever they deem a person is unfit to own or carry a firearm. Meaning that if someone was reported to be “abusive”, for example, then the court will decide wither or not to confiscate their firearms.

The Donald Trump administration opposes the section as it “would strain the military justice system’s limited resources and greatly expand the authority of military judges into an area reserved to civil courts” in a way that “represent a major expansion of the portion of the Gun Control Act of 1968.”

Commanding officers, the White House statement noted, already have the authority to issue protective orders for service members and dependents in appropriate circumstances.

But “if enacted, this provision would likely result in a significant expansion of the military justice system’s caseload, for which the system does not have adequate personnel, thereby producing undesirable systemic delays, including in sexual assault cases,” the statement read.

Aidan Johnston, Director of Federal Affairs for Gun Owners of America, called it a case of House Republicans being “asleep at the wheel.” Johnston pointed out the bill, along with the red flag section, passed unanimously in committee. On Tuesday evening was approved by the floor by a 295-125 veto-proof majority. Fully 108 House Republicans voted for it, with 81 opposed, and nine not voting.

The Senate passed their version (S. 4049) 86-14, though it appears to lack the red flag provision.

“Understood in context, Section 542 of the [House] bill codified a new ‘red flag’ gun confiscation order program enforceable against any person subject to the United States Code of Military Justice — meaning both active duty military and retirees, among others,” Johnston wrote. “Because these would be issued on an ex parte basis, the gun owner would get no notice, no attorney, and no ability to defend himself against the accusations — in short, no due process.”