Table of Contents
There is increased gun violence in the United States, which is characterized by a series of mass shootings in the recent past. Policymakers and political leaders are seeking the most viable preventive measure that upholds individuals’ constitutional rights. Nineteen (19) states have so far implemented Extreme Risk Protective Orders (ERPO), commonly known as red flag laws, since Connecticut first enacted them in 1999. Red flag laws are state-level policies that permit judges to grant special protective orders, authorizing family members or the police to temporarily confiscate guns from persons the court deems to be a danger to themselves or others (Williams,2019). Therefore, this paper analyzes red flag laws, their working mechanisms, potential pros & cons, and overall importance to the United States society.
How it Works
The working mechanism follows four steps. First, a concerned party notifies the authorities of a potentially dangerous situation and seeks confiscation orders. A gun owner may become a risk if they have discussed shooting others, expressed suicidal intentions, or have judgment-impairing health conditions such as dementia. The request for an ERPO often originates from friends, relatives, or family members who, based on their assessment, perceive a gun owner as a risk to themselves or others. Law enforcement authorities may also request an ERPO before a civil court. The hearing process generally takes two to three weeks.
Second, if a judge deems the person dangerous to themselves or others, they grant the temporary firearm confiscation orders. After a judge issues the orders, a law enforcement officer asks the order’s subject to surrender all firearms to law enforcement authorities or an authorized gun dealer within 24 hours. The length of time for the confiscated weapons to remain in the custody of law enforcement authorities is dependent on the circumstances. However, the court can usually extend the confiscation period after considering an extension request from law enforcement officers or family members. The orders also prohibit a person from whom law enforcement officers have seized firearms from purchasing others. Statistics show that the majority of ERPO requests succeed. The judge may also order a psychiatric evaluation of the potentially dangerous person.
Third, before the expiry of the temporary confiscation order, the court conducts a hearing where the potentially dangerous individual is free to present counter-evidence, by themselves or through a lawyer, as to why they think the confiscation order is unwarranted. Based on the available evidence, the court may order the seizure of the firearms for about one to five years per the circumstances and laws in the given state. Finally, the individual requests law enforcement officers to return the confiscated weapons on the expiry of the ERPO. Some states, such as California, demand petitioners pass a background check before repossessing the guns. Laws in some states, such as Florida, permit the respondent to appeal to the court for the return of the firearms before the expiry of the red flag order (Stedman, 2022).
Pros and Cons of Red Flag Laws
Red flag laws bolster public safety by reducing gun violence. Whereas it is difficult to quantify the success of these laws in reducing gun violence, law enforcement authorities have confiscated several firearms from persons who may have potentially harmed themselves or others. The laws prevent malice in reporting potentially dangerous persons by prescribing punishments for false reports. In addition to reducing gun violence, red flag laws have been crucial in reducing suicides. Research has shown that most Americans who commit suicide use guns. Confiscating guns from people who have expressed suicidal intentions has thus been crucial in lowering suicide rates. Studies in Indiana and Connecticut have shown that gun-related suicides are reduced by one for every 10–20-gun confiscations under the red flag laws (Sherman, 2022).
Critics of red flag laws cite their infringement on the Second Amendment, which upholds a person’s right to bear arms. However, laws that may infringe on constitutional rights must pass a strict scrutiny analysis. The strict scrutiny analysis provides that a restrictive law must serve a compelling state interest, be narrow in scope and allow for due process. Unlike other gun regulation proposals, red flag laws allow for due process through court hearings. They are limited in scope since they only permit the seizure of weapons from potentially dangerous individuals. Other issues with red flag orders occur in their enforcement by police officers. ERPO enforcement has in the past resulted in fatal confrontations between the police and defiant gun holders. Red flag laws have contributed to vindicative and frivolous attempts to target law enforcement officers (American Police Officers Alliance, 2021).
Importance of Red Flag Laws to the US Society
The gun control debate in the United States remains contentious and emotion-packed. The gun control proposals proposed in the past have failed to garner enough political goodwill as opinion is often split along political lines. After over two decades of several states experimenting with red flag laws, statistical trends show that the laws are effective if applied correctly. Court records from several states indicate that the courts have ordered the seizure of significant amounts of guns, thus preventing potential cases of gun violence or suicide (Macfarlane, 2022). The upcoming senate bipartisan gun control laws reinvigorate the federal initiative for states to implement ERPO (Phillips,2022). Red flag gun laws thus provide a viable middle ground for the American gun control debate.
This paper has looked into red flag laws, their working mechanisms, potential pros & cons, and overall importance to the United States society. States implement red flag laws, thus mandating courts to order the confiscation of firearms from persons deemed to pose imminent threats to themselves or others. The laws are triggered by notification to law enforcement authorities. The laws are crucial in reducing gun violence and suicides. Critics of the low, however, cite their infringement on constitutional rights. Red flag laws offer a viable compromise between pro-gun control and anti-gun control arguments.
- American Police Officers Alliance. Red flag laws & 2nd Amendment sanctuaries. (2021, July 12). https://americanpoliceofficersalliance.com/red-flag-laws/
- Macfarlane Scott. (2022, June 6). “Red flag” laws work — but only if they are used correctly, data show. CBS News. https://www.cbsnews.com/news/red-flag-laws-states-implementation/
- Phillips Amber. (2022, June 14). What are red-flag laws? The Washington Post. https://www.washingtonpost.com/politics/2022/06/14/what-is-a-red-flag-law/
- Sherman Amy. (2022, June 10). Ask PolitiFact: What are red flag gun laws, and do they keep people safe? The Poynter Institute. https://www.politifact.com/article/2022/jun/10/ask-politifact-what-are-red-flag-gun-laws-and-do-t/
- Stedman, Nancy. (2022, July 14). What Are Red Flag Laws—and How Can They Save Lives? The Healthy. https://www.rd.com/article/red-flag-laws/
- Williams Timothy. (2019, August 6). What Are ‘Red Flag’ Gun Laws, and How Do They Work? The New York Times. https://www.nytimes.com/2019/08/06/us/red-flag-laws.html