Extreme Risk Protection Orders in the Post-Bruen Age: Weighing Evidence, Scholarship, and Rights for a Promising Gun Violence Prevention Tool

82 Pages Posted: 20 Oct 2023

See all articles by Andrew Willinger

Andrew Willinger

Duke University School of Law, Center for Firearms Law

Shannon Frattaroli

Johns Hopkins University - Johns Hopkins Bloomberg School of Public Health

Date Written: October 11, 2023

Abstract

Extreme Risk Protection Orders (ERPOs) are civil court orders that temporarily prohibit gun purchase and possession by people who are behaving dangerously and at risk of committing imminent violence. As of September 2023, ERPOs are available in 21 states and the District of Columbia. This Article presents an overview of ERPO laws, the rationale behind their development, and a review and analysis that considers emerging constitutional challenges to these laws (under both the Second Amendment and due process protections) in the post-Bruen era. The Article notes that the presence of multiple constitutional challenges in many ERPO-related cases has confused judicial analysis and argues that, especially in light of Bruen’s novel text, history, and tradition test, courts should be especially careful to clarify how cumulative harm arguments are impacting their analysis. An examination of Second Amendment court decisions concerning another type of civil protection order, Domestic Violence Protection Orders, informs the approach used to further consider ERPO rights deprivation claims and the constitutionally relevant distinctions among different civil dispossession proceedings.

The Article further considers the state of ERPO law in the context of the evolving evidence documenting the uptake and impact of ERPOs on gun violence in the United States, including a review of scholarship that seeks to understand how ERPO statutes are being implemented and to determine whether the laws prevent interpersonal gun violence and suicide. Finally, the Article concludes with a commentary and set of recommendations to inform the practice and future scholarship of ERPO as a tool for preventing gun violence in the United States, in accord with constitutional protections in the post-Bruen age.

Note:

Funding Information: I received no funding for this paper specifically.

Conflict of Interests: I am not aware of any conflict of interest.

Keywords: ERPO, Red Flag, Second Amendment, Gun Regulation, Due Process

JEL Classification: I18, K10

Suggested Citation

Willinger, Andrew and Frattaroli, Shannon, Extreme Risk Protection Orders in the Post-Bruen Age: Weighing Evidence, Scholarship, and Rights for a Promising Gun Violence Prevention Tool (October 11, 2023). Fordham Urban Law Journal, Forthcoming, Duke Law School Public Law & Legal Theory Series No. 2023-62, Available at SSRN: https://ssrn.com/abstract=4599281

Andrew Willinger (Contact Author)

Duke University School of Law, Center for Firearms Law ( email )

Box 90360
Durham, NC 27708-0360
United States
919-613-8641 (Phone)

HOME PAGE: http://https://firearmslaw.duke.edu/

Shannon Frattaroli

Johns Hopkins University - Johns Hopkins Bloomberg School of Public Health ( email )

Wolfe Street
Baltimore, MD 21205
United States

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