Debate Desk
Do Red Flag Laws Protect People Without Violating Their Rights?
Conservatives are divided: the goal is sound, but a gun-removal order without a prior hearing raises serious due process problems.
The claim
Extreme risk protection orders let a court order that guns be temporarily removed from a person who poses a danger to himself or others. Supporters say that in many shootings the warning signs were visible, that families and police need a tool short of arrest, and that the orders are temporary and reviewable.
The answer in three points
- The goal is one conservatives share: keep a person in crisis from hurting himself or others. The question is how, and whether the process respects the Fifth and Fourteenth Amendments, which forbid taking property or liberty without due process of law.
- Many orders are first issued without notice to the person, based on one side's statements, with a hearing weeks later. The burden, the standard of proof and the penalty for a false report differ widely among states, and some provide little protection against abuse.
- Better laws include strong safeguards: a hearing before a judge, proof by clear and convincing evidence, penalties for false reports, a short duration, and access to counsel and mental-health evaluation. Conservatives disagree among themselves whether those safeguards can make the model acceptable or whether the model is flawed at its core.
The practical advice is to read your state's statute, not the label. Look at who may file, what evidence is required, when the hearing takes place, how long the order lasts, what happens to a person who files a false petition, and whether the person can get his guns back easily. The details decide whether a law is a safeguard or a weapon.
The numbers
- Florida enacted its extreme risk protection law in March 2018, after the Parkland shooting, according to the Florida Legislature.
- Several states adopted these laws between 2018 and 2020, according to the National Conference of State Legislatures.
- The Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property without due process of law.
What they will say next
"The orders are temporary." A temporary seizure is still a seizure, and a person who has committed no crime can lose property and the ability to protect his family for weeks. Temporary is not the same as harmless.
"Hearings come quickly." In some states they do. In others, they wait. A person whose home has been searched for weapons on the strength of an accusation wants a hearing early.
"Doctors say it saves lives." Studies of these laws are limited and mixed, and the evidence for suicide prevention is stronger than for stopping mass attacks. Good evidence should be weighed, and the due process concerns remain whatever the data show.
"Police already have the power to detain people in crisis." They do, under mental-health holds that include medical review, and those procedures are older and better tested. A well-funded crisis response may do more than a gun-removal order.