Conservatives disagree about red-flag laws, and both sides deserve a hearing

The outside world pictures conservatives as a single column marching in step. Anyone who has been to a county party meeting knows better. We argue, loudly and with footnotes, and occasionally with a laminated copy of the Constitution, and the argument over red-flag laws is one of the loudest. It splits people who agree on nearly everything else, including the Second Amendment and the Fifth.

That is a good reason to do something unusual for a post on the internet: lay out both sides in the words their own defenders would use, and only then say where I come out. A person who is going to lose a gun, or a person who is going to lose a child to a gun, deserves an argument that took the trouble to understand the other.

What a red-flag law is

The formal name is an extreme risk protection order, or ERPO. It is a civil court order, not a criminal sentence. A court, on a petition, finds that a person poses a serious risk of harming himself or others with a firearm and orders that he not possess firearms for a period of time. The police remove the guns he has, and he is barred from buying others while the order stands.

The laws differ by state in the details, and the details are the whole argument. The questions that matter are: Who may file the petition? What must the petitioner show? Can the court act before the respondent has had a chance to speak, in what is called an ex parte proceeding? How soon is the full hearing? What standard of proof applies? How long does the order last? And how does the person get his property back?

The history in three dates

1999: Connecticut. Connecticut passed the first law of this kind in 1999, after a 1998 shooting at the state lottery headquarters. Its design was a "risk warrant," issued by a judge on the application of police, allowing the seizure of firearms from a person believed to pose an imminent risk.

2005: Indiana. Indiana followed in 2005 with a law, named after an Indianapolis police officer killed in 2004, that let police seek a court order to hold and keep firearms from a dangerous person, with a court hearing to follow.

2018: Florida. After the February 14, 2018 shooting at Marjory Stoneman Douglas High School in Parkland, which killed seventeen people, Florida passed the Marjory Stoneman Douglas High School Public Safety Act, signed in March 2018 by Governor Rick Scott, a Republican. It included a risk protection order that law enforcement could petition for, a temporary order that could issue before a full hearing, and a final order lasting up to a year. The same law raised the minimum age to buy a rifle to twenty-one and imposed a waiting period. After Parkland, a number of other states passed their own versions.

2022: the federal law. The Bipartisan Safer Communities Act, signed in June 2022, did not create a federal red-flag order. It gave states grant money for crisis-intervention programs, which states may use to run extreme-risk programs, though they may also use it for mental-health courts and other approaches. The statute is where the federal dollars come in, and it is how the issue reached Congress; you can see the context in ninety years of federal gun law in the dates that changed the rules.

How the process works

Consider the typical sequence, though each state writes its own. A family member or a police officer, depending on the state, files a sworn petition describing what the respondent has said or done: threats, a pattern of alarming behavior, a recent suicide attempt. A judge reviews it. If the judge finds that the facts show an imminent danger, the judge may issue a temporary order, ex parte, so that the respondent has no chance to argue before the guns are taken. The temporary order lasts until a full hearing, which states often schedule within a couple of weeks. At the full hearing the respondent may appear, call witnesses and cross-examine. If the court finds that the petitioner has met the required standard of proof, a final order is entered, usually for up to a year, subject to renewal.

The standard of proof is a major variable. Many states require clear and convincing evidence, which is more than the ordinary civil standard of a preponderance and less than the criminal standard of beyond a reasonable doubt. Some use the lower standard. A few provide counsel for the respondent. Others do not.

The conservative case for

Here is the best case from the side that supports these laws, stated as its defenders would state it.

It targets the person, not the object. Conservatives have long argued that the right policy toward violence is to focus on the individual who is dangerous rather than the millions of lawful owners who are not. A red-flag law does that. It does not ban a type of firearm or limit anyone's purchase. It acts only against a specific person on specific evidence, and leaves the ordinary citizen alone. If the alternative is a broad ban, which I argue against in The weapons of war argument against the AR-15 fails on its own terms, an individualized order looks like the conservative option.

We already accept a version of it. Courts already restrain people on a showing of danger. A judge can issue a domestic-violence protective order, which can bar a person from his home and, under federal law, from firearms. The Supreme Court upheld that firearm restriction in United States v. Rahimi (2024). Courts commit people to psychiatric care in emergencies. Nobody calls those the end of liberty.

The warning signs are usually visible to someone. Those closest to a person in crisis, the family, the roommate, the officer who took the last call, often see the danger first. The law gives them a lawful tool short of arrest. The alternative, as defenders put it, is that a family sees the warning and can do nothing until after the shooting.

Suicide. By the public-health statistics, more than half of gun deaths in this country are suicides, a fact worth saying plainly. A 2016 study of Connecticut's law estimated that roughly one suicide was averted for every ten or eleven gun seizures. It is an estimate, and later reviews have called the evidence on suicides inconclusive. The idea behind it is plausible: a crisis often passes, and a temporary removal of the quickest means can give it time to pass.

It is voluntary compared with the alternatives. The order is temporary, and the guns are returned when it ends. It is a pause and not a confiscation.

The conservative case against

Now the other side, in the words of the conservatives who oppose these laws. I think this case is at least as serious.

It deprives a person of a constitutional right without a crime. The respondent has not been charged, let alone convicted. He is not an adjudicated felon. The Second Amendment protects "the right of the people to keep and bear Arms," and the Fifth Amendment says no person shall "be deprived of life, liberty, or property, without due process of law." A court order that takes a man's property and his right on a showing short of a crime is a heavy imposition.

The ex parte stage is the weak point. The basic rule of due process is notice and an opportunity to be heard before the government deprives you of property. In Fuentes v. Shevin (1972), the Supreme Court said that, apart from extraordinary situations, a person is entitled to a hearing before he is deprived of property. In Mathews v. Eldridge (1976), it described the balance that decides how much process is due: the importance of the private interest, the risk of error under the procedures in use and the value of added safeguards, and the government's interest. An ex parte order puts armed officers at a man's door on the strength of one side's account. A hearing that comes afterward cures some of that, but a man's guns are already gone.

False and vindictive petitions are a real risk. A bitter ex-spouse, a feuding neighbor or a relative with a grudge can file a petition. In an ex parte proceeding, no one is there to challenge the story. A respondent who is innocent of any danger still loses his property, spends money on a lawyer and carries the record of the order. Prosecutors punish perjury, but a petitioner who is wrong rarely pays.

Enforcement can go wrong in the worst way. An order is carried out by police arriving, usually early in the morning, to take weapons from a person already described to them as dangerous. That is a recipe for confrontation. The Supreme Court in Caniglia v. Strom (2021) unanimously held that the "community caretaking" doctrine does not allow police to enter a home without a warrant to seize firearms from a man who had made a suicidal remark. The Court's point was that the home is the place the Fourth Amendment protects most. The case did not involve an order, and the Court said nothing about orders, but its logic is a caution for every statute that puts officers in the home.

It may discourage people from seeking help. A man who fears losing his guns if he tells a doctor or a counselor how he feels may say nothing. If so, a law meant to prevent suicides might push a few of them out of sight. The point is speculative, but plausible, and it ought to concern anyone who cares about the outcome.

It does not remove the means. A determined person can find another weapon, or another method. A temporary order does not treat the underlying crisis, and a court has no good way of doing so.

Government has a record of overreach. Conservatives do not need a dissertation to doubt a new government power that depends on the good judgment of every officer and judge who uses it. A power that exists will be used, and a list of the people who may be disarmed tends to lengthen, much as a temporary tax tends to retire at the same age as a temporary government office.

Where the answer lies: the safeguards

Both sides agree on more than they admit. Neither wants the law to be applied to a person who is not dangerous, and neither wants a family to watch a tragedy unfold with no recourse. The difference is how much weight each gives the two ways of being wrong. So the question is less "red flag, yes or no" than "which red flag." The statute's safeguards determine whether it is defensible.

I would test any proposal against this list.

1. A prompt and real hearing. The ex parte period should be as short as possible, days and not weeks, and the full hearing should be a real one, with notice, the right to appear, to present evidence and to cross-examine.
2. A high standard of proof. Clear and convincing evidence, at the least, for a final order. A preponderance standard is thin when a constitutional right is at stake.
3. Counsel. A respondent who cannot afford a lawyer should have one, as a person facing the loss of liberty ordinarily does.
4. Narrow petitioners. Law enforcement and close family or household members, not anyone who knows the person.
5. Sworn, specific evidence. Recent, concrete acts or threats, not vague unease, and a real penalty for knowingly false petitions.
6. Ex parte orders only on evidence of imminent danger, and with a judge, not a clerk, deciding.
7. A short duration, and a renewal that requires fresh proof. A year is not a lifetime, but it is not a weekend either.
8. A simple way to get the property back, and to end the order early when the danger has passed.
9. A connection to treatment. An order that takes the gun and offers nothing is half a policy.
10. Appeal. The right to ask a higher court to review.

Where I come out

The argument I would make is this. The principle behind an individualized order is a sound one, and it is consistent with how the law has always treated a person found to be dangerous: after process, with evidence, by a court. A law with the safeguards on that list, narrowly drawn, is defensible, and I think it is a better answer to a serious problem than a ban on a class of firearms that millions of law-abiding people own. A law without them is not. A statute that allows a single ex parte order, on a low standard, at the request of anyone, with no counsel and no penalty for lies, is a due-process hazard, and the conservatives who object to it are right.

I hold this with some humility, because the evidence on how well these orders work is still thin and the research is young, as I have said. The right instinct for a conservative is to demand the same evidence we demand of every government program. How many orders were issued? How many were dismissed at the full hearing? How many were renewed? How many petitions were found to be false? What happened to the people subject to the orders? Those numbers exist in state court records, and an honest advocate on either side should want them published.

The Founders' answer to a hard question of liberty and safety was the one the Fourth and Fifth Amendments gave: warrants on oath, notice, a hearing, a jury where a crime is charged. I wrote about the same tension in the discussion of The Sullivan Act of 1911 and the century New York spent rationing carry permits, where an official's discretion was the problem. Process is the thing that keeps a power from becoming an arbitrary one.

The case in brief

1. An extreme risk protection order is a civil court order that bars a person found dangerous from having firearms for a period, and the details of each state's law decide whether it is fair.
2. Connecticut (1999), Indiana (2005) and Florida (2018, after Parkland) built the model, and the 2022 federal law funds state crisis-intervention programs.
3. Supporters say the orders target the person and not the object, resemble existing protective orders, and may avert suicides; opponents say they take a right without a crime, rely on ex parte orders that offend Fuentes and Mathews, invite false petitions and risk dangerous confrontations.
4. The question is decided by safeguards: a prompt hearing, a high standard of proof, counsel, narrow petitioners, sworn evidence, short duration, return of property and appeal.
5. A law with those safeguards is defensible; a law without them is a due-process hazard, and both camps of conservatives deserve an answer on the numbers.

What you can do: read your own state's extreme risk or red-flag statute, if it has one, on the legislature's website and test it against the ten safeguards, then tell your state legislator which ones it lacks.