Can Red Flag Laws Withstand Constitutional Review?

Can Red Flag Laws Withstand Constitutional Review?

( – Adopted in 19 states and the District of Columbia, red flag laws establish a process for removing firearms from individuals considered too dangerous to possess them. Surprisingly, a vast majority of Americans support these laws. So, what exactly are red flag laws, and are they constitutional?

Red flag laws are a relatively recent form of legislation dating back to the deadly 2012 shooting at Sandy Hook Elementary School. They grant state courts the authority to issue an emergency protective order (EPO) authorizing law enforcement personnel to confiscate firearms from people deemed a risk to themselves or others. Typically, local police officers or family members petition the court for an EPO.

President Trump and some Republican legislators have spoken out in support of red flag laws. The conservative-leaning Heritage Foundation supports them along with gun-rights advocacy groups like the Second Amendment Foundation and the National Rifle Association.

However, public support alone is not enough to withstand constitutional review.

Are Red Flag Laws Constitutional?

Although the Constitution grants us rights, the courts have consistently ruled they aren’t absolute. There are times when competing interests exist like the protected right to bear arms versus public safety.

When reviewing the restriction of rights, the courts traditionally consider four questions:

  1. Does the restriction serve a legitimate purpose?
  2. Does that restriction achieve its intended goal?
  3. Do other remedies exist that could achieve the same goal?
  4. Do the benefit(s) of the restriction outweigh the impact of the limitation on individuals or society at large?

The third question above is where red flag laws could conflict with established constitutional norms. As the NRA pointed out in its defense of red flag laws, all 50 states have some form of civil involuntary commitment law for individuals deemed a risk to themselves or others. However, the NRA believes that no one should be deprived of a fundamental right without due process of law.

And therein lies the problem with red flag laws. The same judicial review used to issue an EPO and confiscate someone’s firearms is used to commit someone involuntarily. While both accomplish the intended goal of protecting public safety, taking someone’s guns without providing mental health services is merely applying a bandaid to the situation. It’s only treating the symptom.

There is an alternative to issuing an EPO and taking someone’s guns. It’s providing treatment for that individual’s underlying mental health issue(s). That process better serves the long-term interests of public safety, and for that reason, the courts should consider the constitutionality of red flag laws.

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