According to the FBI crime data, death by firearms in 2018 accounted for more than 72 percent of all the homicides recorded that year. There have been more than 60 incidences of mass shootings over the last four decades.
Gun control continues to be a hot topic of debate. The US alone has the highest rate of gun ownership compared to any other country in the world and by a staggering margin at that.
Currently, only two federal laws that regulate the sales and ownership of firearms exist:
- The National Firearms Act of 1934 prohibits civilians from owning hand grenades, short-barreled shotguns, automatic weapons, or any other powerful firearm.
- The Gun Control Act of 1968 bars the sale of weapons via mail between direct buyers / sellers and requires that anyone in the business of selling firearms have a federal firearms license (FFL) and keep a permanent ledger of all their sales records (FFL Bound Book).
The 1968 Act also outlaws the sale of firearms to anyone with a prior criminal record or mental health issue and prohibits sales to minors and a few other categories of individuals.
To reduce the high rates of gun violence witnessed across the country, several states have gone ahead to institute red flag laws as a way to curb the rising death tolls brought about by the use of firearms.
So, what are they and how do they work? This article explores everything you need to know about them.
What Are Red Flag Laws – Overview
Red flag laws allow law enforcement officers, family members, or any other specified third party to petition a court to temporarily remove a gun from an individual’s possession if they pose an imminent danger to themselves or others.
Several states have some form of a red flag law in force. In Washington, Vermont, Oregon, and Maryland, they are known as Extreme Risk Protection Orders. In California, they are referred to as Gun Violence Restraining Orders. In Florida, they are called Risk Protection Orders.
Regardless of what they’re called, they all work the same way.
If a judge finds the causes for removal justifiable, they will issue an order that compels the individual in question to surrender all firearms in their possession to law enforcement, for a specific duration. The individual will not be allowed to purchase or sell arms for the period that the order is in force.
Constitutionality of Red Flag Laws
The next logical question to ask would be – are red flag laws unconstitutional in light of the 2nd Amendment? Well, at first glance, it might appear that way. But, despite this fact, at least three different courts in Florida, Connecticut, and Indiana ruled that red flag laws fall squarely within state governments’ authority to regulate guns.
Although judicial interpretations of the 2nd Amendment may change, legal scholars argue that the idea behind risk protection orders infringing (to some extent) on a citizen’s liberties isn’t anything new. The key thing to recognize is that – the removal of the firearm is only a temporary measure.
If the continued possession of the weapon puts the life of the individual or that of others at risk, one might also argue that it infringes on their constitutional right to life, if the individual in question ends up using the firearm to harm others.
Gun laws, in general, exist to reduce the potential for gun-related violence that could end up in a homicide. Gun confiscation is one way to do this, particularly if the individual is despondent and at a higher risk of suicide.
What States Have Red Flag Laws?
Below is a list of red flag law states that have passed gun confiscation laws so far:
- Washington
- Virginia
- Vermont
- Rhode Island
- Oregon
- New York
- New Mexico
- New Jersey
- Nevada
- Massachusetts
- Maryland
- Indiana
- Illinois
- Hawaii
- Florida
- District of Columbia
- Delaware
- Connecticut
- Colorado
- California
Keep in mind that this area of the law changes frequently. Several other states have pending legislation that might pass soon.
How Do Red Flag Laws Work?
In most states with gun confiscation laws in place, law enforcement officers, family, or household members can file a petition with the court for Extreme Risk Protection Orders (ERPOs), or the respective firearm removal order in their state. This can only be done if they believe that an individual is a threat to themselves or the people around them.
Some states also allow community members to petition the court. School administrators in the State of New York, for instance, can file for such orders. In other states like Florida and Indiana, only police officers can petition the court. Either way, you can still go to law enforcement and ask them to file a petition.
When filing with the courts, you need to show that:
- Threats or acts of violence by the respondent to themselves or others have occurred within the six months leading up to the date of filing
- The respondent has violated an emergency protective order that is still in effect at the date of filing
- The respondent has violated a domestic violence protective order that is still in effect within the six months leading up to the date of filing
- The respondent has previously been convicted of a crime that prohibits them from owning a firearm
- The respondent has exhibited a pattern of violent acts over the last 12 months
The Oregon gun confiscation law, in particular, has what can only be termed as an unusually high standard of proof before ex parte orders for confiscation can be issued. These orders, however, become permanent if the respondent fails to challenge it in court.
The Extreme Risk Protection Order and Violence Prevention Act of 2019, was introduced in the Senate, to legislate red flag laws at a federal level. The bill is yet to be passed.
Don’t Wait Until It’s Too Late
More often than not, red flag laws are used to remove guns from people who pose potential threats to themselves, their families, or members of their household. This is generally the case if they suffer from illnesses like alcoholism, drug addiction, dementia, despondency, or any other ailment that could potentially impair their judgment.
Research the red flag laws in your state to learn what you need to do to file a petition for removal if your life or that of other family members is at risk.