The first extensive scholarly analysis of so-called “red flag” laws has concluded that the statutes are constitutional but could still face a number of challenges in the future.
The article, published in the Virginia Law Review, argues that the central constitutional issue pertinent to red flag laws is not gun rights but due process.
“Although the Second Amendment continues to draw much of the attention, the more substantive and pressing concern is whether ERPOs [Extreme Risk Protection Orders] violate gun owners’ due process rights,” the article reads.
Jacob Charles and Joseph Blocher of the Duke Center for Firearms conclude that Supreme Court precedent allows for the kind of red flag laws that have been passed in nineteen states and the District of Columbia.
“Although we do not undertake an exhaustive or individualized assessment of various state laws, we conclude that the basic structure of existing extreme risk laws satisfies the requirements of due process,” they say.
Though they admit that there hasn’t been much case law on this issue, Second Amendment challenges to red flag laws have largely failed. The authors cite two examples from courts in Connecticut and Indiana that both ruled red flag laws do not “place a material burden” on the “core” right of law-abiding citizens to bear arms in self-defense.
The due process challenge is more robust, they say, because all red flag laws allow firearms to be seized without a hearing where the accused is present. These seizures come after a petitioner asks the court to remove firearms from the individual until a full hearing can take place. Most laws require this hearing to take place within 10 or 14 days, but in the meantime, the individual has already lost his or her firearms.
The authors argue that these temporary seizures meet the standards laid out by the Supreme Court for other temporary restrictions on constitutional rights.
“The Supreme Court has permitted these types of ex parte orders in similar situations involving fundamental interests when necessity requires quick action,” the say.
Under one set of criteria, laid out in Mathews v. Eldridge, a law is constitutional if it does not impose “hardship” on an individual, there is little risk of error, and the government has a legitimate public interest.
Charles and Blocher argue that red flag laws satisfy all three criteria.
In regards to the first, they say, “The ‘hardship imposed upon’ a gun owner by a temporary deprivation should not be overstated. It is exceedingly unlikely that a short-term ERPO will deprive a person of the ability to effectuate the ‘core’ Second Amendment interest in armed self-defense.”
The authors do admit that red flag laws will still face challenges moving forward. There has been little evidence thus far that red flag laws actually work, and civil liberties groups have taken issue with expanding the types of people who can ask a court to have someone’s firearms seized.
“One flashpoint in the laws is who can petition for an order, and some states have had pushback from both gun rights and civil liberties groups when the class of petitioners broadens out to individuals with more tangential relationships to the person alleged to be dangerous,” Charles told the Michael Bloomberg-funded publication “The Trace.”
Even in the article, Charles and his co-author admit that family members, co-workers, and teachers may abuse red flag laws to harass innocent people.
“…The broader the category of petitioners, the stronger the concerns about misidentification and abuse,” they say. “In certain toxic family environments—those involving serious distrust or abuse, for example—it is possible that false claims might be filed in an effort to harass or even disarm those who do not present any legitimate threat.”
Others have pointed out that red flag laws are duplicative of other, more helpful, tools. Powhatan County, Virginia, Sheriff Brad Nunnaly said during a town hall earlier this year that the state’s Temporary Detention Order (TDO) would be more helpful because it allows law enforcement to obtain mental health care for the individual.
“I doubt we will utilize [red flag laws] at all because I cannot think of an instance where the red flag law would apply to you and you do not also need mental health care… if we determine there’s a threat, then we will take care of that person and we’ll continue to use the TDO process,” he said.