Opponents of new gun control proposals rallied near the Capitol in January. (Ryan M. Kelly/ For the Virginia Mercury)
As the Virginia General Assembly voted in favor of bills to establish a red flag law, Republicans in both chambers denounced the proposal as unconstitutional.
On the Senate floor last month, Sen. Bill Stanley, R-Franklin, said that in a rush to “dissolve the Second Amendment,” Democrats are “willing to sacrifice” other constitutional rights, like the right to not have your home searched or property taken without good reason.
“Why don’t we just be honest with ourselves… and let’s make the Commonwealth of Virginia a Bill of Rights-free state?,” Stanley said. “That is, that we are no longer bound by what the Founding Fathers told us were our most important gifts and rights. Because you’re doing it. Unabashedly.”
But in a handful of other states, including conservative ones, judges have already upheld laws empowering authorities to temporarily seize guns from people deemed dangerous to themselves or others.
At least three courts — in Indiana, Connecticut and Florida — have ruled that red flag laws, also known as extreme-risk or substantial-risk laws, fall within governments’ established powers to regulate firearms. While judicial interpretations of the Second Amendment can change, experts say the legal concepts behind risk-protection orders aren’t particularly novel or unique.
“The different details of the state laws may raise different questions,” said Jake Charles, executive director of the Center for Firearms Law at the Duke University School of Law. “But as a matter of structure, laws that allow for temporary infringement or temporary restrictions on important liberty interests are nothing new.”
Seventeen states and the District of Columbia have some form of a red-flag law, many of them adopted after the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla.
Democratic majorities in the state Senate and the House of Delegates have both passed legislation to enact a red flag law in Virginia, and Gov. Ralph Northam is expected to sign the proposal once its finalized and sent to his desk.
Though often pitched as a way to curb mass shootings, Virginia Democrats have argued the law could also help reduce gun suicides by giving relatives a mechanism to get guns away from a despondent family member. Republicans have warned the law won’t work as advertised, arguing it has too much potential for abuse by law enforcement or bad actors who may exaggerate or falsify a threat.
Under Virginia’s proposed law, judges or magistrates could issue an emergency order allowing police to seize a subject’s guns if an investigation determines that person poses “a substantial risk of personal injury to himself or others in the near future.” Within 14 days, a court hearing would be held to determine whether a more long-term order is justified. At that hearing, a judge could decide to return the guns or extend the order for up to 180 days, with additional extensions possible if authorities believe the threat of violence has not diminished with time.
Anyone who lies to law enforcement to have a risk protection order taken out against someone else would be subject to criminal penalties.
Red flag laws are often compared to emergency protective orders in domestic violence cases, which allow judges to bar a person from contacting family members or entering their home if they find there’s an imminent threat. In Virginia, those orders expire after three days.
“As a constitutional matter, courts have long recognized that as long as there are appropriate procedural safeguards in pace, the government has the ability to act swiftly in emergency situations like this,” Charles said.
Timothy Zick, a professor of constitutional law at the William & Mary Law School, said red flag laws are “certainly defendable” in court, but legislators have to be careful whenever they’re crafting laws that would deprive someone of property or liberty before giving them a chance to be heard in court. Legal challenges to red flag laws, he said, are more likely to focus on due process concerns than blanket claims about Second Amendment rights.
“The more procedural protections are put in, the more likely the law is to survive judicial review,” Zick said.
More court rulings on red flag laws may be on the way. A legal challenge has been filed in New Jersey involving the case of a man whose guns were seized after police say he posted online messages promoting anti-Semitic violence. In Nevada, a conservative group has sued to try to block a red flag law that took effect last month.
Here’s how courts have adjudicated red flag challenges thus far:
The Court of Appeals of Indiana issued a ruling in 2013 that the state’s red flag law violates neither the state Constitution nor the U.S. Constitution.
The plaintiff in that case, Robert E. Redington, had 48 firearms taken from his house after he was found in a Bloomington parking garage using a range finder to scope out a nearby sports bar. At the time, he was armed with two loaded handguns and had a loaded shotgun in his vehicle. Redington later told police he was looking for Lauren Spierer, an Indiana State University student who had gone missing from the bar in 2011. Redington also told authorities he had been seeing “spirits and dark entities,” and mental health professionals testified that he had showed signs of a “schizotypal personality disorder.”
The court ruled that the state’s red flag law did not violate Redington’s constitutional rights and, as such, he was “not entitled to just compensation for the firearms retained by the Bloomington Police Department.” The court also ruled officials had shown “clear and convincing evidence that Redington was dangerous.”
“Here, we note that the United States Supreme Court has recently and repeatedly recognized the legitimate governmental purpose of prohibiting the mentally ill from possessing firearms, ” the majority wrote.
In 2016, the Appellate Court of Connecticut ruled that its red flag law — the first of its kind in the nation — does not violate the Second Amendment, because its limited and temporary nature “does not restrict the right of law-abiding, responsible citizens to use arms in defense of their homes.”
“It restricts for up to one year the rights of only those whom a court has adjudged to pose a risk of imminent physical harm to themselves or others after affording due process protection to challenge the seizure of the firearms,” the court wrote. “The statute is an example of the longstanding ‘presumptively lawful regulatory measures’ articulated in District of Columbia v. Heller.”
In the 2008 Heller case, the U.S. Supreme Court recognized an individual right to keep and bear arms for lawful purposes, while noting that those rights are not “unlimited.”
The red flag challenge in Connecticut was brought by Donald Hope, whose guns were taken after his wife told police she had found him holding a rifle and talking about possible intruders. Hope’s wife later testified that she believed her husband was suffering from delusions caused by a medication he was taking.
Last year, a Florida appeals court upheld the state’s red flag law , rejecting a challenges filed by a sheriff’s deputy named Jefferson Davis who lost his gun rights after co-workers in the Gilchrist County Sheriff’s Office said he threatened to kill another officer whom he believed was romantically involved with his longtime girlfriend.
The challenge filed by Davis argued the law was unconstitutionally broad and vague, but the court found it was narrowly tailored to address a valid public safety issue.
“Here, the prevalence of public shootings, and the need to thwart the mayhem and carnage contemplated by would-be perpetrators does represent an urgent and compelling state interest,” the court wrote.
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