Red-flag laws are only as good as their due process protections

Let me describe the most dangerous sentence in American law: "It's only temporary." That sentence has covered for more bad ideas than any other in the history of government. Temporary tax. Temporary emergency. Temporary powers. The word "temporary" is the velvet glove, and what is inside it is usually the same iron hand.

Now, I am not telling you that red-flag laws are tyranny. I am telling you something more useful: that a red-flag law is a machine with a very simple job and a very long list of ways to go wrong, and that the difference between a good one and a bad one lives entirely in the fine print. If you want to know whether your state's law deserves your support, don't ask whether the idea sounds nice. Read the process.

So let's do this properly. First, the strongest case for these laws, stated in terms their supporters would accept. Then the questions every statute has to answer. Then what I'd do instead, or in addition.

What a red-flag law is

An extreme risk protection order, or ERPO, is a civil court order that temporarily bars a person from having firearms because a judge has found that the person poses a danger to himself or others. The supporters prefer "extreme risk protection order." The critics, and a lot of the public, say "red-flag law." They are the same thing.

The mechanics usually run like this. Someone with legal standing files a petition. A judge reviews it. If the judge finds the evidence sufficient, the court issues a temporary order, often the same day. Police serve the order and take the firearms the person has. Later, there is a full hearing, after which the judge can extend the order for a set period, commonly up to a year, or let it lapse. The details differ by state, and that is precisely the point of this post.

A short history helps. Connecticut passed the first law of this kind in 1999. Indiana followed in 2005. For years those two were mostly alone. The pace picked up after the Parkland school shooting on February 14, 2018, when Florida, with a Republican governor, Rick Scott, and a Republican legislature, passed the Marjory Stoneman Douglas High School Public Safety Act, which he signed on March 9, 2018. Florida's law included a risk protection order, and it is the reason many red-state conservatives have had to make up their minds about the subject. In June 2022, the Bipartisan Safer Communities Act, signed on June 25, 2022, added federal grant money for state crisis-intervention programs, including these orders, which turned a state-by-state experiment into a national policy conversation.

The strongest case for the law

Here is the argument, and I'll state it the way a smart supporter would.

A family sees someone they love falling apart. Maybe it is a son who has stopped sleeping and is making threats. Maybe it is a husband who is drinking and talking about ending it all. The family knows there are guns in the house. They are not looking to punish anyone. They want time.

What can they do? Involuntary commitment requires a high legal bar and a bed in a hospital, and in many places there is no bed. A criminal charge requires a crime. A restraining order requires, usually, a specific threat to a specific person. There is a gap. The person is dangerous but has not done anything to be arrested for, and the family has nowhere to go.

The ERPO fills the gap with a tool that is fast, limited and reversible. It does not take away the person's rights forever. It does not label him a criminal. It does not ask him to prove his innocence. It puts a judge between the crisis and the gun, for a period of weeks or months, until things settle. And it works through the courts, which is where we want these decisions to be made, and not in a police officer's gut.

That is a strong argument. It deserves respect, not a sneer. Every conservative who is honest about this subject should concede the underlying problem: there are real situations where a family sees a disaster coming and no tool exists. If the answer to "what should the family do?" is "nothing," the answer is not good enough.

Where the argument meets the Constitution

Now the other side. The Constitution says that no person shall be "deprived of life, liberty, or property, without due process of law." That language is in the Fifth Amendment, and it binds the states through the Fourteenth. A firearm is property. And, since District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010, keeping and bearing arms is an individual constitutional right that applies against the states. (See How McDonald v. Chicago carried the Second Amendment to every state.)

So the right question is not "is this a good idea?" It is "what process is due before the government takes a person's constitutionally protected property and rights?" The general framework the Supreme Court uses is Mathews v. Eldridge (1976): weigh the private interest at stake, the risk that the procedure will produce a wrong result, how much an added safeguard would reduce that risk, and the government's interest. This is where red-flag laws live or die.

And note what the Court said in 2024. In United States v. Rahimi, decided June 21, 2024, the justices upheld a federal ban on firearm possession by a person who is subject to a domestic-violence restraining order, in an opinion by Chief Justice Roberts with only one dissent. The order in that case had been issued after a hearing at which the man had notice and an opportunity to be heard, and the Court noted that a judge found a credible threat. The lesson is not "red-flag laws are constitutional." The lesson is that the process behind the order was part of why the restriction passed. (For more, see Bruen and Rahimi explained, the history test every gun law now faces.)

The questions every statute has to answer

Here is where I'd put on my debater's hat. Eight questions. A law that cannot answer all eight does not deserve your support.

1. Does a judge decide, or an officer? The order should come from a judge, on a sworn petition, with evidence. Be wary of any statute that lets a police agency issue or extend it by itself.

2. What is the standard of proof? States use different standards for the full hearing. Some use "preponderance of the evidence," which means more likely than not. Some use "clear and convincing evidence," which is higher. Taking a constitutional right away on the lowest standard, when the stakes include a person's ability to defend his family, is a bad trade. The higher standard is better. Read your state's statute to see which one applies.

3. What happens before the person is heard? This is the ex parte question, and it is the sharpest one. An ex parte order is one that issues without notice to the person, because notice might allow a dangerous person to act. Supporters say a gun can't wait for a hearing. Critics say a one-sided proceeding is the exact thing due process exists to prevent. The fair middle: a short-lived temporary order, based on sworn testimony, followed promptly by a real hearing at which the person can answer. How short? Check the statute. If the law gives no fixed, short deadline for the full hearing, that is a defect.

4. How fast does the full hearing come? States set their own deadlines. The shorter the better. A man who loses his firearms and then waits weeks to see a judge is being punished before he has been heard.

5. Who may petition? Some states limit petitions to law enforcement. Some add family and household members. Some add doctors, school officials, employers or coworkers. The wider the list, the greater the risk of a petition filed from spite in the middle of a divorce or a feud. A narrower list, anchored in people who actually know the person, is safer.

6. What happens to a false petition? There should be a real penalty for lying to a court to get someone's guns taken away. Some states make a knowingly false petition a crime. If your state's law has no penalty, the safeguard that keeps the process honest is missing.

7. Does the person get a lawyer? In a criminal case, a defendant who can't pay is given a lawyer. These proceedings are civil, so that right does not automatically attach, and many states do not provide counsel. A person who may lose a constitutional right deserves, at a minimum, the chance to have one, and a statute that is silent on this point should worry you.

8. How do the guns come back? The order expires or is dismissed. Then what? The statute should spell out how and when the firearms are returned, who bears the cost of storage, and what happens to the record. A law that makes it easy to take guns and vague about giving them back has told you what it is really for.

Add to the list: where do the guns go while the order runs? Do police have to inventory what they take? Who is liable if the property is damaged? These are dull questions, and dull questions are where rights hide.

The objections, answered in order

Supporters have answers. Let me give three and respond.

"Judges already issue orders like this in domestic-violence cases." True, and that is a useful comparison. But those orders usually require an identified victim, and a hearing with notice follows quickly. The ERPO has no identified victim in many cases and is broader. The comparison supports a careful design, not a loose one.

"The orders are temporary." This is the sentence I opened with. Temporary is a fact about the clock. It says nothing about whether the person was heard, whether the evidence was solid, or whether the rights come back. A temporary deprivation without a fair process is still a deprivation.

"If we do nothing, people die." The most powerful claim and the hardest to answer in a short space, because the answer is not "do nothing." It is "do something that works and protects rights at the same time." And on that, there is good news.

What conservatives can support instead, or alongside

The record shows that Republicans in several states have found ways to address the problem without writing a blank check. A few options are worth knowing.

• Better use of involuntary commitment. The tool exists. The problem in many places is capacity, standards and follow-through, not the lack of a statute. If a person is dangerous because of a mental crisis, the traditional answer is evaluation and treatment, with a judge and a lawyer in the room. Funding beds and crisis teams does more for that family than a new order.
• Better record reporting. The federal background check system only works if the states send it the disqualifying records, including mental-health adjudications and criminal convictions. Congress has acted on this twice, in the NICS Improvement Amendments Act of 2007 and again in the Fix NICS Act of 2018, which was passed as part of a spending bill. The aim is simple: enforce the prohibitions already on the books. (See what a federal background check covers, and what it never did.)
• Crisis-response teams and treatment access. Money that sends a trained clinician to a call, instead of leaving it to a police officer alone, helps without touching anyone's property.
• A well-built ERPO, if your state wants one. Judge-only. High standard of proof. Fast full hearing. Narrow list of petitioners. Penalties for false petitions. Counsel for the respondent. Prompt return. A sunset clause that forces the legislature to review the law. That is a version a careful conservative can support, and it is a long way from the loosest versions on the books.

States are, as always, the laboratories. Brandeis Called the States Laboratories and Conservatives Took Him at His Word makes the case for letting them experiment, and How a Bill Becomes State Law, From Idea to the Governor's Desk shows how to take part in writing the rules. If you live in a state that has such a law, find the text on your legislature's website and grade it against the eight questions above.

The verdict

Here is mine. The idea behind red-flag laws is not crazy, and the problem it addresses is real. But the idea is only as good as its process, and a process that fails the eight tests is a power grab dressed in compassion. A law that takes a man's firearms on one side's say-so, with no prompt hearing, no standard worth the name, no penalty for lying and no clear road back, is not a safety law. It is a weapon that can be aimed at any of us, in a divorce, a feud or a political dispute, by anyone with a grudge and a signature.

The conservative position is not "no." It is "show me the process." The same principle that makes us insist on due process for people we dislike (see Why Conservatives Defend Due Process Even for People They Dislike) makes us insist on it here. And it is the principle that The Tenth Amendment Rule That Protects Red States Also Protects Sanctuary Cities reminds us about: the power to decide belongs close to home, with checks, not in a faraway office with a rubber stamp.

The bottom line

• Red-flag laws address a real gap, a family that sees a crisis coming and has no tool. Say so honestly. That is how you win the argument with a neighbor who disagrees.
• Judge the law by its process: a judge, a high standard of proof, a prompt full hearing, a narrow list of petitioners, penalties for false petitions, a lawyer for the respondent, and a clear road for return of firearms.
• Read your state's statute on the legislature's website. Do not rely on a headline, a slogan or a summary from either side.
• Back the tools that do not put rights at risk: crisis teams, treatment capacity, and getting the right records into the background check system.
• If your state is writing or rewriting a law, show up, ask the eight questions out loud, and ask for a sunset clause. A power the government can't be made to review is a power it won't give back.