Are you a gun owner who is curious about red flag laws? The recent trend in state firearms legislation has been making waves across the country, and it’s important to understand what exactly these laws mean for your right to bear arms and to determine if you live in a red flag law state. From understanding how red flag laws work to exploring their potential impact on Second Amendment rights and listing which states have red flag laws, we’ll provide all the information you need to know about these controversial policies.
What Is a Red Flag Law?
So-called “Red flag” laws are state laws that are known by various names, including “Extreme Risk Protection Orders (ERPOs),” “gun-violence restraining orders” and “risk warrants.” If someone observes something or hears something that he or she believes could be out of place and feels an individual could be a threat or about to engage in harmful activities, he or she is supposed to notify law enforcement officials, who can then take advantage of red flag laws. They allow law enforcement, family members and even medical professionals in some states to petition the court to temporarily limit an individual’s ability to buy or possess a firearm who is believed to present a danger to himself or herself or others.
A judge makes a ruling, and if the order is signed, law enforcement can confiscate the firearms and ammunition from the individual.The person also loses any concealed carry permits he or she may have and is prohibited from purchasing or possessing firearms, typically for up to one year.
Why Are They Controversial?
One reason red flag laws are so controversial is because, in some states, the person that is the subject of the order has no knowledge of the petition or order. Therefore, there is no ability to defend himself or herself against the accusation prior to the property being confiscated and losing the rights to purchase or possess firearms.
Usually, when law enforcement is going to seize property or enter someone’s home without that person’s permission, there are certain judicial steps that must be followed. For example, before an individual is convicted of something, he or she has the right and is typically given the opportunity to confront the accuser, is entitled to review the evidence and has the option of a jury trial.
In red flag law cases, the government may, on its own and often without the accused even having knowledge of the proceedings, take steps to determine if that individual should continue to have the right to own those firearms. Under red flag laws, a person who has not committed a crime may have his or her guns confiscated, seemingly in violation of the constitutional right to due process. The person may not be able to lawfully possess firearms for six months, a year or perhaps even longer.
There is also a concern regarding the opportunity for these petitions to be abused or “weaponized” by former partners or family members. Some states have created penalties for providing false evidence. Additionally, the subject of the order is presumed to be guilty and forced to go to court to prove his or her innocence.
The debate over red flag laws extends to whether they genuinely target violent individuals or merely individuals with guns. Numerous instances illustrate that confiscating firearms might not deter those intent on causing harm, as they could resort to alternative weapons to carry out their intentions.
Consider the case of a man in a Chicago suburb who was arrested by local police for killing his own mother by repeatedly stabbing her with a samurai sword in 2019. Despite the police having removed the murderer’s firearms twice before the incident, the suspect, lacking a gun, still harbored evil intent and used whatever weapon he could find.
While proponents of red flag laws argue in favor of restricting gun ownership, those with an understanding of violence recognize that guns are just one of many weapons available to dangerous individuals. If there’s a will, they will find a way. That’s why it’s vital to be prepared to be your own defender.
Learn more about state gun laws in Concealed Carry and Home Defense Fundamentals
Which States Have Red Flag Laws?
Twenty states and the District of Columbia have red flag laws.* The states with red flag laws are:
- California
- Colorado
- Connecticut
- Delaware
- Florida
- Hawaii
- Illinois
- Indiana
- Maryland
- Massachusetts
- Michigan
- Nevada
- New Jersey
- New Mexico
- New York
- Oregon
- Rhode Island
- Vermont
- Virginia
- Washington
How to Stay Informed About Red Flag Laws
While proponents of red flag laws argue that these regulations are necessary for preventing potential threats and protecting communities, they’re overlooking due process violations and the potential for abuse. Also, the cases where individuals resort to alternative weapons despite the confiscation of firearms raise questions about the true impact of red flag laws on preventing violence.
Despite their controversy, currently 42 percent of U.S. states have implemented red flag laws, each with unique details.
*Minnesota will become a red flag law state on Jan. 1, 2024.
This article is a compilation of previous blog posts authored by Beth Alcazar and Jim Doyle.
The information contained on this website is provided as a service to USCCA, Inc. members and the concealed carry community and does not constitute legal advice. Although we attempt to address all areas of concealed carry laws in all states, we make no claims, representations, warranties, promises or guarantees as to the accuracy, completeness or adequacy of the information disclosed. Legal advice must always be tailored to the individual facts and circumstances of each individual case. Laws are constantly changing, and, as such, nothing contained on this website should be used as a substitute for the advice of a lawyer.
