It seems like the gun conversation has become a broken record. It’s been a non-stop push for banning “assault weapons” and/or imposing universal background checks to limit the amount of legal gun owners in the United States.
Red flag gun laws is one of these attempts to get the United States closer to universal background checks.
Granted, this is a complex subject with high emotions, and any gun related tragedy doesn’t help the conversation; but as of this writing 19 states have passed red flag gun laws which is viewed by many on the right as a knee jerk reaction.
Plus, with a brand new Democratic president in the white house, it’s a no wonder legal gun owners are getting anxious about the safety of their constitutional right.
If you haven’t heard of “red flag” laws, it’s known as “extreme-risk protection” or a more restrictive restraining order.
In this article we’re going to review what these laws are, why they’ve been accepted by the states, and how it will affect you.
We promise to provide you with a fair and balanced look at the situation, and to explore the topic in depth to the best of our abilities.
If for any reason the material in this article is not “legally” accurate, please reach out with sources and we’ll update the article.
What Are Red Flag Gun Laws?
Currently “red flag” laws are considered risk-based gun removal laws, or in a better sense, it can be considered a much more restrictive restraining order.
Side Note: The official name for a red flag law is an “extreme risk protective order.”
Why is it related to a restraining order?
Generally this law is for people (family members, friends, teachers, therapists, etc) to formally ask for an investigation into someone close to them, who is in possession of a firearm, and is considered an extreme danger to others or themselves.
Officially, the police need to create a formal petition to the local courts with the intention of temporarily banning a person from owning a firearm. Then a local judge will mandate the order to temporarily confiscate the weapons from the individual, where they will be returned after a period of time.
If you have been mandated by the government to release your weapons to the authorities, and you refuse this mandate, you can be punished with a criminal offense (in most states it’s a felony to refuse your guns under a red flag law).
It’s important to remember, no two red flag gun laws are the same. Each state has vastly different interpretations and procedures for this law.
After the series of mass shootings in the recent years, these laws have been introduced with the intention of better identifying individuals who seek to do harm. It’s a way of hopefully preventing more mass shootings or unnecessary gun casualties.
Why Are Red Flag Gun Laws Becoming More Popular With The States?
Currently, the legislative branch believes there’s a gap in our gun laws where dangerous people (with strong signals of danger) are allowed to legally purchase or own guns.
Right now, federal law prohibits anyone with the following conditions from possessing a firearm:
- Felony conviction
- Domestic abuse or violence misdemeanor
- Previously committed to a mental health institution
- Active restraining order on them
So what’s the problem?
From the mass shootings which have happened over the past 40 years, very few have fallen into the above criteria which prevent them from possessing firearms. Even if they’ve demonstrated risk of endangering themselves or others.
Comprehensive red flag gun laws are seen as a way to plug the gap for where there’s failure with the current laws.
Additionally, it provides an avenue for citizens to provide early alert to law enforcement about the potential dangers of a person who would have previously been unnoticed.
What States Have A Red Flag Gun Law?
Currently 19 states (and the District of Columbia) have some form of a red-flag law. We’re going to provide a full list of the states and their associated red flag laws.
These states are:
- California (Gun Violence Restraining Orders)
- Colorado (Extreme Risk Protection Orders)
- Connecticut (Risk Warrants)
- Delaware
- District of Columbia
- Florida (Risk Protection Orders)
- Hawaii
- Illinois
- Indiana (Proceedings for the Seizure and Retention of a Firearm)
- Maryland (Extreme Risk Protection Orders)
- Massachusetts
- Nevada
- New Jersey
- New York
- New Mexico (Extreme Risk Firearm Protection Orders)
- Oregon (Extreme Risk Protection Orders)
- Rhode Island
- Vermont (Extreme Risk Protection Orders)
- Washington (Extreme Risk Protection Orders)
Side note: It should be noted that Oklahoma has actually become the first and only state (so far) to enact what’s considered an “anti-red flag” law. Their law specifically prohibits any sort of red flag law from being enacted.
How Long Do Red Flag Laws Last For The Affected Individual?
Right now there are two main durations for red flag laws. These are:
- Temporary
- Final
Temporary Restrictions
A court will quickly decide if an individual is a hazard to society, and they’ll then issue the temporary restraining order.
These temporary duration laws are short in duration and will typically expire between 2-21 days (depending on the state you’re in).
Final Restrictions
These are typically filed after the temporary one has been assessed by the judge in the case. You’ll also usually be provided an opportunity to object your temporary restriction.
If a court views the individual to be an extreme hazard to society, they can invoke a final restriction which will typically prevent the individual from possessing a firearm for between 1-5 years.
Do Red Flag Laws Violate The Second Amendment?
To date, red flag laws have been upheld as not violating the Second Amendment. It should be noted though there’s not much precedence or case law on the subject currently.
Currently, precedence about red flag laws indicate it doesn’t violate our Second Amendment rights because: “it doesn’t restrict law-abiding, responsible citizens to use firearms in defense of their homes.”
This is where the waters are muddy on the topic. The Second Amendment literally says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Like other rights though, there can’t be unlimited access. The Supreme Court has certainly feels this way, because their interpretation is that a person with previous violent history (like convicted felons) should not be allowed to possess a firearm. That is a full removal of the Second Amendment right.
What makes red flag gun laws unique is the temporary aspect. It is only for a temporary time where people deemed “serious risks” will have their Second Amendment right stripped until due process has occurred.
Only until an investigation has occurred, and it’s been deemed that the disarmed person does not actually pose a violent threat, will they regain access to their Second Amendment right.
Will Red Flag Laws Work?
Depending on your definition of “work.”
For example, there was a study completed in 2016 by Law and Contemporary Problems where they analyzed data from 762 risk warrant gun confiscations. They determined that red flag gun laws prevented one suicide for every ten gun seizures.
This is important because 62% of U.S. gun deaths come from suicides.
So…
If your goal with red flag laws is to prevent suicides, then yes you could say the laws have been a benefit.
There’s no evidence to support red flag laws as a preventative measure for mass shootings, although a study published by Annals of Internal Medicine does believe ERPO’s (red flag laws) “play a role” in preventing mass shootings.
Even with this evidence the public still believes the United States needs to have these kinds of laws in place. In fact, 85% of registered voters believe police should take away firearms from those found to be a danger to themselves or others.
Can Red Flag Laws Be Abused?
Yes, absolutely.
Here’s the primary concern with red flag laws: where’s the due process?
How are you going to investigate someone who’s neither been charged with a crime, nor been diagnosed with a mental disorder?
This is the very foundation of our legal system which guarantees the right of citizens to “due process” before a court of peers.
Red flag laws specifically skirt around this under the guise of “extreme measures protection.”
This leads to a situation where individuals can just make up accusations without any factual evidence.
Granted, individuals must formally sign an affidavit indicating specific facts as to why an individual should have their weapons restricted, but only California has a law which indicates punishment for false allegations.
What’s to prevent an ex-spouse from seeking revenge with false accusations?
Executive Summary: Red Flag Gun Laws
Like we mentioned earlier. Gun law, and particularly the Second Amendment, is a complex maze of theory and precedence.
Yes, these laws do appear to help prevent suicides, which is a net positive for the community.
However…
While we can certainly empathize with those looking to prevent unnecessary firearm fatalities, we (as citizens of the United States) are granted the unalienable right to keep and bear arms, and receive due process for any crime.
There’s a strong argument that red flag gun laws sidestep these rights under the guise of “protecting our community from extremely dangerous people”, even though they haven’t properly been convicted of any crime.
Hopefully this article has provided clarity on red flag laws. If you have any questions, or want to leave a comment, please do so below.
Sources:
https://www.capitalgazette.com/news/crime/ac-cn-red-flag-20180824-story.html
https://en.wikipedia.org/wiki/Red_flag_law#cite_note-2
http://efsgv.org/wp-content/uploads/2018/05/Data-behind-Extreme-Risk-Laws-FINAL-2.pdf
