Firearm “Red Flag” Laws in the 116th Congress

Firearm “Red Flag” Laws in the 116th Congress

Updated August 7, 2019
Firearm “Red Flag” Laws in the 116th Congress
In the last year, federal and state legislators have shown
person poses an imminent risk. For final orders, clear
increased interest in passing so-called “red flag” or
and convincing evidence of a significant danger is often
“extreme risk protection order” firearm laws. In general,
required.
such laws permit courts to issue temporary orders barring
 Upon entry and service of an order, the person who is
particular persons from possessing guns based on some
the subject of the order must relinquish his or her
showing of imminent danger or a risk of misuse. Following
firearms (if he or she possesses any) immediately or
the February 2018 shooting at Marjory Stoneman Douglas
within a certain amount of time. In many states, a
High School in Parkland, FL, states have increasingly
warrant will or can also be issued authorizing seizure by
considered and enacted red flag laws. Legislation has also
law enforcement.
been introduced in the 116th Congress that would
supplement or incentivize these state laws, criminalize at
Proposals in the 116th Congress
the federal level violations of qualifying extreme risk
Legislation has been introduced in both houses that would,
protection orders, or both. The Senate Judiciary Committee
among other things, incentivize additional states to adopt
held a hearing on the subject of red flag laws in March
red flag laws and/or criminalize possession of firearms by
2019.
persons who are subject to extreme risk protection orders.
Some of these measures are briefly described below.
This In Focus provides an overview of the general features
of red flag laws that have been enacted at the state level,
Incentivizing Adoption of State Legislation
briefly describes some of the red flag proposals in the 116th
Congress, and notes the primary constitutional arguments
Though varying in the details, several bills—chiefly, H.R.
that have been raised in favor of and in opposition to such
744, H.R. 1236, S. 7, and S. 506— would establish grant
laws.
programs to aid in implementation of red flag laws,
conditioning the receipt of such grants by states or Indian
General Features of Red Flag Laws
tribes on adoption of laws that meet certain requirements
“Red flag” or “extreme risk protection order” laws
(e.g., standards of proof for extreme risk protection orders
generally provide procedures for certain persons to petition
and time limits on such orders). Under H.R. 1236, S. 7, and
a court to order that firearms be temporarily taken or kept
S. 506, states and Indian tribes that have adopted qualifying
away from someone who poses a risk of committing gun
laws would also be given affirmative preference in the
violence. Currently, 17 states and the District of Columbia
award of other discretionary grants.
have passed some form of red flag law. These laws vary in
the details, but common elements include the following:
S. 7 additionally would condition grant funding on a list of
related requirements and prohibitions (e.g., requiring that ex
 Only specified persons may petition a court for an
parte orders be issued only on sworn affidavits or
extreme risk protection order. Typically, qualified
testimony). Further, the legislation would give states that
persons are limited to law enforcement officers and, in
have already enacted red flag laws that do not fully meet
many cases, family or household members.
the requirements of the bill a one-year grace period during

which they remain eligible to receive grant money so long
Both preliminary and final orders are available. A
as “similar” requirements are in place.
preliminary order may be entered ex parte, meaning that
the person who is the subject of the order need not be
Violations of Extreme Risk Protection Orders
given notice or appear. Such an order is typically of
brief duration (anywhere from a few days to, at most,
H.R. 744, H.R. 1236, H.R. 1745, S. 7, and S. 506 would
three weeks). After the person who is alleged to pose a
amend Sections 922(d) and 922(g) of Title 18 of the U.S.
risk of gun violence has been given notice and an
Code. Section 922(g) currently criminalizes the possession,
opportunity to appear, a final order of longer duration
receipt, shipment, or transportation of firearms and
may be entered. Final orders can last up to one year
ammunition by persons who fall into specific, risk-related
under most state provisions, with the opportunity for
categories (e.g., convicted felons). And Section 922(d), in
renewal.
current form, criminalizes the sale or disposal of firearms
 Before an order can be entered, some factual showing
and ammunition to persons who fall into the same
must be made that the person for whom the order is
categories, provided that whoever sells or disposes of the
sought poses a risk of using a firearm to harm himself or
firearms or ammunition knows or has reasonable cause to
others, with the stringency of the requisite showing
know of the disability.
depending on whether an ex parte or final order is
requested. The standard of proof for many ex parte
Generally, the five bills propose to add persons who are
orders is reasonable or probable cause to believe the
subject to extreme risk protection orders to the prohibited
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Firearm “Red Flag” Laws in the 116th Congress
categories, making it a federal crime for persons subject to
constitutional provision analogous to the Second
the orders to possess firearms and for anyone else who has
Amendment, concluding that because only persons proven
reasonable cause to know about the orders to sell or give
by clear and convincing evidence to “present a risk of
firearms to them.
personal injury to either themselves or other individuals”
are subject to firearm seizure, the law does not “place a
Each bill would limit in different ways the kinds of orders
material burden” on the “core” right of law-abiding citizens
that would make persons subject to the prohibitions in
to bear arms for self-defense.
Section 922, and some of the limitations would potentially
exclude certain states’ existing extreme risk protection
It thus appears that, to date, red flag laws have withstood
order regimes. For example, H.R. 744 would limit the
Second Amendment challenges in court. Nevertheless,
prohibitions to persons who are subject to final (not ex
because of the limited amount of case law, there remains
parte) orders, initiated by family members or law
the possibility that a court taking a broad view of the
enforcement officers, based on clear and convincing
Second Amendment could reach a different conclusion.
evidence of “imminent, particularized, and substantial risk”
of unlawful firearm use causing “death or serious physical
Due Process
injury.”
The Due Process Clauses of the Fifth and Fourteenth
Constitutional Issues
Amendments prohibit the government from depriving a
person of “life, liberty, or property, without due process of
The constitutionality of red flag laws has been a subject of
law.” Among other things, the Due Process Clauses require
public debate and unsuccessful court challenges in multiple
that the government afford persons with adequate
states. Opponents of red flag laws argue that they are
procedures when depriving them of a constitutionally
unconstitutional for two primary reasons: first, because they
protected “liberty” or “property” interest. In the context of
impose impermissible burdens on the Second Amendment
red flag laws, at least two constitutionally protected
right to keep and bear arms, and second, because they
interests could be affected: (1) the fundamental liberty
deprive law-abiding citizens of their rights (or their
interest in a person’s right to keep and bear arms, and
property) without due process of law in violation of the
(2) the property interest in the arms themselves.
Fourteenth Amendment. Proponents counter that (1) under
Supreme Court precedent, red flag laws place legitimate
Assuming one of these interests to be at issue, a court will
restrictions on gun possession by persons who pose serious
ask whether the government has used constitutionally
risks to themselves and others, and (2) hearing and review
sufficient procedures in deciding whether to deprive a
procedures are sufficient to meet the constitutional demands
person of the interest. The appropriate process due—that is,
of due process.
the type of notice, the manner and time of a hearing
regarding the deprivation, and the identity of the
Second Amendment
decisionmaker—will vary based on the specific
The Second Amendment states that “[a] well-regulated
circumstances at hand, including both the private party’s
Militia, being necessary to the security of a free State, the
and the government’s interests.
right of the people to keep and bear arms, shall not be
infringed.” In District of Columbia v. Heller, the Supreme
Opponents of red flag laws point out that typically, due
Court held that the Second Amendment guarantees an
process requires that a person be given an opportunity to be
individual right to possess firearms for historically lawful
heard before the deprivation of a protected interest may
purposes. However, the Court also recognized that “[l]ike
occur. Because most red flag laws provide for an initial ex
most rights, the right secured by the Second Amendment is
parte process by which guns may be ordered removed or
not unlimited” and further announced that “nothing in our
kept from persons without notice to them, the argument
opinion should be taken to cast doubt on longstanding
goes that post-deprivation procedures are constitutionally
prohibitions on the possession of firearms by” certain
inadequate. Conversely, proponents of red flag legislation
persons, among other “presumptively lawful” regulations.
point out that under Supreme Court precedent, post-
deprivation process can satisfy the Due Process Clause
Based on these pronouncements, courts have upheld a
where “a State must act quickly, or where it would be
number of state and federal firearm restrictions and
impracticable to provide pre-deprivation process.”
prohibitions in the face of Second Amendment challenges,
including red flag laws in at least two states. In Hope v.
Thus far, it does not appear that any reported court
State, for example, an appellate court in Connecticut
decisions have addressed due process challenges to state red
rejected a challenge to the state’s firearm removal law,
flag laws, though some federal and state courts have upheld
reasoning that the law does not implicate the Second
ex parte orders in other contexts where there was imminent
Amendment because “it does not restrict the right of law-
danger and post-deprivation hearings were held
abiding, responsible citizens to use arms in defense of their
expeditiously.
homes.” The Hope court also viewed Connecticut’s law as
“an example of the longstanding ‘presumptively lawful
Michael A. Foster, Legislative Attorney
regulatory measures’ articulated” in Heller. Similarly, an
Indiana appellate court determined in Redington v. State
IF11205
that Indiana’s red flag law does not violate a state

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Firearm “Red Flag” Laws in the 116th Congress

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https://crsreports.congress.gov | IF11205 · VERSION 2 · UPDATED