On November 21, 2024, the Trump transition team announced its replacement pick for Matt Gaetz for the cabinet position of Attorney General. Pam Bondi served for eight years as the Attorney General for the State of Florida. She then served as Trump’s attorney during his first impeachment trial. She then served as director of the America First Policy Institute, a think tank aligned with the Trump Campaign. She has demonstrated unwavering commitment to President-Elect Trump and his overall agenda, but her record on the Second Amendment gives rise to some very specific concerns, which Cam Edwards at Bearing Arms covered recently as have many other writers and activists in the 2A community.
Of note is Pam Bondi’s prior support for “Red Flag” laws that she helped pass in the State of Florida in the wake of the Parkland school shooting in 2018 (which, also concerning, then-President Trump also supported). In the six years since 2018, there appears to be no public record of her position from 2018 on this issue. She has neither publicly reaffirmed nor revised her stance on this topic.
To be clear, no policy area impacting Second Amendment rights in the US is more varied than the topic of red flag laws. There is a spectrum on this issue, which is reflected in how red flag laws have been enacted at the state level across the US. There is a huge disparity in implementing these policies with some states not enacting them at all, some states enacting versions with substantial due process considerations and some states enacting very aggressive versions of these laws with very few due process restraints.
While all versions of red flag laws are a concern, the states that have enacted the most extreme versions have almost no due process protections. Simply put, they appear to be an extremely thinly veiled attempt to effectuate wholesale disarmament by any means necessary. States like New Jersey and New York fall into that category.
So, what role does the US Attorney General play in this? Unfortunately, the US Attorney General’s Office plays a substantial role, and Pam Bondi’s nomination needs all of the attention that it is getting from the 2A community (2A groups and activists across the US have largely opposed this nomination).
In 2022, the Bipartisan Safer Communities Act was signed into law by President Biden which, among other things, creates federal funding for the establishment of red flag laws and related programs in the states. Attached to that law is nearly $2 billion in federal funding for gun control with hundreds of millions of dollars in state grants for these red flag law programs. Those grants are administered by Office of Justice Programs through the Byrne JAG Fund which is a division of the Department of Justice which is, of course, overseen by the US Attorney General.
Section 12003 of the Act, under Subsection A, Subparagraph 2, Clause I, iv:
[E]xtreme risk protection order programs, which must include, at a minimum— “(I) pre-deprivation and post-deprivation due process rights that prevent any violation or infringement of the Constitution of the United States, including but not limited to the Bill of Rights, and the substantive or procedural due process rights guaranteed under the Fifth and Fourteenth Amendments to the Constitution of the United States, as applied to the States, and as interpreted by State courts and United States courts (including the Supreme Court of the United States). Such programs must include, at the appropriate phase to prevent any violation of Constitutional rights, at minimum, notice, the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses.” [Emphasis added]
In other words, there is a requirement under the law that substantial due process safeguards must be in place for states to qualify for funding under the BSCA. That qualifier is a wide open door to cutting funding for states like New Jersey that provide little to no due process safeguards, where ex parte temporary extreme risk protection orders can be obtained on a vague statement by a police officer, where in-person hearings can be delayed almost indefinitely and where the AG’s Office has, through directives, specifically informed law enforcement that any evidence obtained in executing a TERPO search can be used as admissible evidence of any other crime under the “plain sight doctrine”, making clear that the intent of the law is simply to circumvent the 4th Amendment altogether.
Recent New Jersey Red Flag 4th Amendment Circumvention Cases
On November 13th, New Jersey Attorney General Matthew Platkin spoke directly to the state chapter of Moms Demand Action in a video conference call. During the call, he said:
There were some questions about our ERPO law, which is a really critical tool we have. Our extreme risk protection order law, red flag law as it is commonly called, to keep guns out of the hands of people who are struggling with mental illness. And that law which the governor signed back when I was chief counsel and we have been aggressively using throughout the state. And Tiffany Wilson, who’s here, who’s the director of our Office of Alternative and Community Responses is building out statewide programs to ensure that law enforcement throughout the state understand how they can use that law and that we’re using it aggressively to keep firearms out of the hands of people who shouldn’t have them. [Emphasis added]
He went on to say:
We had a period in Congress with the Bipartisan Safer Communities Act, legislation where we, you know, was that law everything we wanted? No, of course not. But was it the first meaningful step forward in a generation in Congress to see them pass things that have an impact. ERPO statutes have an impact. Funding for violence intervention work that I just mentioned has an impact and can save lives.
During the call, Jeanne Stifelman who is part of the Moms Demand Action state chapter leadership asked:
But what we’re concerned about is a lot of that funding came from things like the Safer Communities Act. And how do you think [that] is going to happen with this new administration and also with the fact that the Congress looks to be going to be a Republican controlled as well as the Senate? Are those funds going to be impacted?
To which AG Platkin replied:
Funding generally, obviously, is very much in flux when you are talking about federal funds right now.
And that is ultimately the question for Pam Bondi. The BSCA created standards for distributing grant money regarding Constitutional safeguards contained in the laws of the state recipients. Despite the wide variety of laws on the books, there appears to be no actual scrutiny with state grants being distributed across the board.
New Jersey Governor Phil Murphy recently admitted that the State of New Jersey is facing budget gaps that could reduce or freeze hiring, but thanks to these federal funds, the New Jersey AG can create offices and statewide initiatives to expand these laws.
The right US Attorney General could stop all of this right now with the stroke of a pen.
While the 2A community has openly criticized this nomination, Bondi otherwise enjoys relatively broad support and, to some degree, even bipartisan support with some suggesting she is better than the alternatives, those “dangerous” Federalist Society members who might have made the list (I have never been prouder to be a member of the Federalist Society). Bondi’s nomination, therefore, may be difficult to stop at this point.
I therefore respectfully and openly request to be nominated as the Acting Assistant Attorney General in charge of the Office of Justice Programs. A non-Senate confirmed appointment to this office could immediately, with the stroke of a pen, cut all funding under the BSCA by simply adhering to the requirements established by Congress under this law, and save hundreds of millions in taxpayer money in the process. As an Acting Assistant Attorney General, I simply pledge to do what Congress requires to be done.
The nazis had red flag laws look how that worked out