Firearms, Extreme Risk, and Legal Design: 'Red Flag' Laws and Due Process

Abstract

The most prominent recent development in gun regulation has been the spread of extreme risk protection order (ERPO) laws—often called “red flag” laws—which permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of the Parkland murders, such orders are now authorized by law in eighteen states and the District of Columbia, and under consideration in many others. Advocates argue that they provide a tailored, individualized way to deter homicide, suicide, and even mass shootings by providing a tool for law enforcement or others to intervene when harm appears imminent, without having to wait for injury, lethality, or criminal actions to occur. But the laws have also garnered criticism, and have become a primary target of the Second Amendment sanctuary movement.

As a matter of constitutional law, the most serious questions about ERPOs involve not the right to keep and bear arms but due process. Such orders—like domestic violence restraining orders, to which they are often compared—can initially be issued ex parte, and critics often allege that this feature (and others including the burden of proof and the class of potential petitioners) raises constitutional problems.

This Article provides a comprehensive analysis of the applicable Due Process standards, and identifies the primary issues of concern. It concludes that, despite some variation, current ERPOs seem drafted so as to satisfy the relevant standards. It also notes those features that are likely to give rise to the strongest challenges. The analysis both builds on and suggests lessons for other areas of regulation where laws are designed so as to lessen extreme risk.

Keywords: Due Process, Red Flag, Extreme Risk, Second Amendment