Red-Flag Laws: Overview

Introduction

Red-flag laws, or extreme risk protection orders (ERPOs), permit an officer of the court to essentially issue a restraining order that allows law enforcement to temporarily confiscate firearms from individuals who may be a risk to themselves or others. ERPOs are ex parte, meaning that the court does not need the individual’s permission to remove their weapons. In most states, evidence must be provided by police, family members, or other associates indicating that an individual had engaged in behavior or is experiencing some condition that might make it more likely that the person would harm themselves or others.

Proponents argue that ERPOs can help save lives by removing weapons from individuals who might be dangerous or who might attempt suicide. Critics argue that empowering governments to remove legally owned weapons creates a dangerous precedent and might lead to government agents unjustly curtailing civilians’ civil liberties. Opponents further argue that attempting to remove a person’s legally owned weapons may exacerbate an already risky situation.

Understanding the Discussion

Assault weapons: A broad, general term used for weapons associated with military activities, such as semiautomatic rifles.

Court order: An order issued by a judge that compels a person to perform a certain action or to refrain from performing certain actions.

Ex parte: A legal term referring to motions or court orders issued for the benefit of one party only, often used for temporary actions ahead of further hearings.

Federal firearms license (FFL): A license issued to dealers of firearms by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.

Fully automatic firearm: A type of machine gun that fires numerous bullets if the triggering mechanism is depressed and held and that was outlawed for civilians by the 1986 Firearm Owners’ Protection Act.

Mass murder: Defined by the Federal Bureau of Investigation as gun deaths of at least four individuals in the same event, usually in the same place; under federal law, the killing of at least three people.

Mass shooting: Broadly defined, a gun crime in which an attacker kills or injures four or more individuals, often with whom the attacker had no prior relationship.

Semiautomatic weapon: A weapon that fires a bullet each time the triggering mechanism is depressed.

History

The Second Amendment to the United States Constitution reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Second Amendment was written in 1789 and adopted in 1791, at a time when there was no police or standing national army. Each state instead created a militia, typically made up of all able-bodied White adult men, to secure the state against external threats. Since the late twentieth century, the meaning and purpose of the Second Amendment has been a subject of intense disagreement: some believe that it permits individual US citizens to own and possess firearms and limits the power of the government to curtail this right, while others believe that it refers to collective defense, allowing each state to form a militia to keep the peace and address threats to state sovereignty.

However one interprets the Second Amendment, the US has had gun laws since its inception, and every state limits the right of citizens to keep and own arms for various reasons. For example, restrictions have been placed on armed travel and local requirements for safe storage as far back as the 1780s. Disarmament within western frontier towns was also commonplace in the nineteenth century.

The federal government did not adopt any significant gun laws until the Prohibition era of the 1920s and early 1930s led to a major surge in organized crime and violence. The first federal gun law, the National Firearms Act, was passed in 1934, following an increase in gang-related violence like the Chicago St. Valentine’s Day massacre in 1929. The act included both registration and taxation. Four years later, the federal government strengthened federal laws with the Federal Firearms Act of 1938, which first required gun dealers to obtain and maintain a federal firearms license to sell weapons legally.

The late 1960s saw a surge in riots and assassinations, including those of President John F. Kennedy, his brother Senator Robert Kennedy, and civil rights leader Rev. Martin Luther King Jr. In light of that, the US Congress passed the 1968 Gun Control Act (GCA), which superseded the 1938 legislation and remains the cornerstone of federal gun control law. Under the GCA, the federal government precludes certain groups from buying guns, including former felons, domestic abusers, and those with mental illnesses. The latter must be involuntarily institutionalized or have a court judgment against them to be barred from gun ownership.

During the 1970s and ’80s, a powerful gun rights lobby emerged in America. Proponents of this movement oppose nearly any gun control regulation, which they believe violates the rights of citizens afforded by the Second Amendment. The movement, and the National Rifle Association (NRA) in particular, established strong connections with and funded the Republican Party beginning during the Ronald Reagan administration. In 1986 Congress passed the Firearm Owners’ Protection Act, which loosened many restrictions on gun sales but also prohibited civilians from owning or transferring fully automatic guns produced thereafter.

The Brady Handgun Violence Prevention Act of 1993, passed after an assassination attempt on Reagan, created a stronger background check system. It seeks to prevent individuals who were deemed not guilty by reason of insanity or incompetent to stand trial for violent crimes from obtaining weapons. In 1994 the gun-control movement also temporarily banned civilians from owning so-called assault weapons, such as semiautomatic rifles. The ban on assault weapons lapsed in 2004 and was not reinstated.

The United States experienced another surge in violence in the 2010s, especially in the form of mass shootings and school shootings, in which one or more individuals target students and/or staff at educational institutions. Although mass shootings have occurred in the United States since the colonial era, they were rare in comparison to the spate of mass shootings that occurred in the early twenty-first century.

According to the Centers for Disease Control and Prevention (CDC), an average of about 40,600 people die by guns each year in the United States, which correlates to a rate of 12.2 gun deaths per 100,000 people—a far higher rate of gun violence than most other economically stable nations in the world. Those numbers were based on data collected between 2016 and 2020 and revealed that the rate of gun deaths increased significantly during that five-year period. For instance, the gun death rate increased by 15 percent between 2019 and 2020 alone, according to the CDC.

With regard to mass murders and school shootings, the US is again a global outlier. The CDC reported that in 2021, there were close to 49,000 gun deaths in the United States; of those, only a small fraction were caused by mass shootings. However, this does not mean that the mass shooting problem is not acute or that there is no need to address the issue. According to data from the gun prevention nonprofit Everytown for Gun Safety, nearly 280 mass shootings—defined as incidents in which four or more people were shot and killed (not including the shooter)—took place between 2009 and mid-2022, leaving more than 1,570 Americans dead and over 1,000 wounded. While there was a slight decrease in mass shooting incidents in 2020 due to the COVID-19 pandemic, those numbers rose again in 2021 and beyond.

One issue that has been raised in the debate over mass shootings in particular is whether police or federal authorities should have the power to preemptively seize legally owned weapons belonging to individuals who might pose a danger to public safety. The first ERPO law was adopted in 1999 in Connecticut after an accountant shot and stabbed four supervisors and then himself. Prior to the incident, the assailant had exhibited emotional and stress-related problems.

Red-Flag Laws Today

By mid-2024, twenty-one states and the District of Columbia had enacted red-flag laws. Fourteen of those states passed their legislation following the Marjory Stoneman Douglas High School shooting in Parkland, Florida, in February 2018, which left seventeen people dead and fourteen others wounded. In the first part of 2019 alone, more than fifty ERPO measures were introduced in twenty-one states. Conversely, by 2021, Oklahoma and West Virginia had enacted anti–red flag laws that prohibit the use of ERPOs.

In 2020 Maine enacted the first yellow flag law in the US. Maine's yellow flag law differs from red-flag laws in that relatives who suspect a gun owner is an imminent threat cannot apply directly to a court for an ERPO, but may only report the gun owner to the police. The police must then decide whether the individual is an imminent threat and if so, take them into protective custody, order a mental health evaluation for them, and have a medical expert agree that they are an imminent threat before applying for an ERPO. The state's law made headlines after the October 2023 Lewiston shootings, in which eighteen people died. Yellow flag actions increased in the weeks after the shootings, but the law was also scrutinized because it had not restricted the shooter's access to guns. While new bills signed into law in the state in early 2024 updated the yellow flag law in ways meant to make its implementation easier, many argued that it remained too weak.

State red-flag laws and proposed bills have varied significantly. For instance, in Connecticut, guns can only be removed from an individual with evidence presented by a state attorney or two members of law enforcement. In Hawaii, by contrast, police, family or household members, health care providers, teachers, and colleagues can all apply to the courts to have an individual’s weapons temporarily confiscated. The requirements for determining risk vary as well, from probable cause to clear and convincing evidence.

Typically, ERPOs can be issued rapidly but have a short window of duration. Thus, police must act quickly before the order expires. In some states, an individual’s weapons can only be removed for a certain duration. For instance, in Illinois and Vermont, a person’s weapons can be confiscated for up to six months and either ended early or extended. A New Jersey resident’s weapons, however, can be subject to indefinite removal, unless the person can demonstrate in a hearing that they pose no danger.

There is limited research on the effectiveness of ERPO laws, but existing data from Connecticut and Indiana suggest that establishing ERPOs correlates significantly with reduced rates of firearm suicide. During the COVID-19 pandemic, when rates of suicide by firearms increased in many states, ERPOs became even more critical. In several states, leaders worked to ensure courts could continue to process ERPOs amid closures and quarantine regulations caused by the pandemic, including making ERPO proceedings available remotely. A study published in the journal Preventive Medicine in December 2022 further highlighted the positive effects of ERPOs, citing that in the six states studied 10 percent of ERPO cases were in response to threats to kill at least three people, suggesting the importance of red-flag laws in preventing such tragedies.

Following the school shooting at an Uvalde, Texas, elementary school in May 2022, in which twenty-one students and teachers were killed, calls increased for an ERPO law to be implemented at the federal level. ERPOs continued to enjoy broad public support at this time. A survey conducted by the progressive think tank Data for Progress in 2022 indicated that Americans broadly favored red-flag laws as a way to prevent gun violence, with 72 percent of American voters voicing their approval of Congress passing a red-flag law, including 86 percent of Democrats and 57 percent of Republican voters.

Likewise, ERPOs began to gain bipartisan support in Washington, as Republican lawmakers faced constituent pressure to address the issue. In June 2022, the US House passed the Federal Extreme Risk Protection Order Act of 2022, and the act was referred to the Senate. That same month, President Joe Biden signed into law a new gun control package. While the legislation did not include a national ERPO law, it did include measures that would make it easier for states to implement more effective ERPOs. The legislation also provided incentives to states to implement ERPOs, in the form of crisis intervention grants. Meanwhile, Democratic legislatures in states like Michigan and Minnesota pushed for and passed red-flag laws in their states in 2023; the laws were signed into law that May. Furthering the federal gun control package's commitment to supporting states' efforts to reduce gun violence, in March 2024 the US Justice Department announced the launch of the National Extreme Risk Protection Order Resource Center, designed to offer training and technical assistance to relevant stakeholders in state and local governments that had enacted red-flag laws. At the same time, Vice President Kamala Harris issued a call for states to pass red-flag laws and for states with existing laws to take advantage of federal funding for implementation.

Critics of ERPOs, including the NRA, contend that the orders infringe not only on gun owners’ Second Amendment rights but also on protections against property seizure and guarantees to due process. Some ERPO skeptics also fear that such laws worsen the problem by increasing stigma and raising the risk of violent confrontation.

These essays and any opinions, information, or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

Bibliography

Achenbach, Joel, et al. “How NRA’s True Believers Converted a Marksman Group into a Gun Lobby.” The Washington Post, 12 Jan. 2013, www.washingtonpost.com/politics/how-nras-true-believers-converted-a-marksmanship-group-into-a-mighty-gun-lobby/2013/01/12/51c62288-59b9-11e2-88d0-c4cf65c3ad15‗story.html. Accessed 21 May 2020.

Allen, Emily. "Maine Steps Up Use of Yellow Flag Law to Seize Weapons from Those in Crisis." Portland Press Herald, 12 June 2023, www.pressherald.com/2023/06/12/maine-steps-up-use-of-yellow-flag-law-to-seize-weapons-from-those-in-crisis/. Accessed 12 Dec. 2023.

Bakst, Brian, and Dana Ferguson. "Walz Signs 'Red Flag' Orders, Universal Background Checks for Guns into Law." MPR News, 19 May 2023, www.mprnews.org/story/2023/05/19/walzs-signs-red-flag-orders-universal-background-checks-into-law. Accessed 12 Dec. 2023.

Cornell, Saul. “Five Types of Gun Laws the Founding Fathers Loved.” The Conversation, 16 Oct. 2017, theconversation.com/five-types-of-gun-laws-the-founding-fathers-loved-85364. Accessed 21 May 2020.

"A Devastating Toll: 2021 CDC Data Shows Record Number of Gun Deaths, Makes Clear the Need for Continued Action to Address Gun Violence in America." Giffords, 14 July 2022, giffords.org/press-release/2022/07/2021-cdc-data-shows-record-number-of-gun-deaths/. Accessed 2 Aug. 2022.

"Extreme Risk Laws." Everytown for Gun Safety, www.everytown.org/solutions/extreme-risk-laws/. Accessed 20 May 2024.

"Fact Sheet: Vice President Kamala Harris Announces Two Gun Safety Solutions while Continuing Efforts to Keep Schools Safe from Gun Violence." The White House, 23 Mar. 2024, www.whitehouse.gov/briefing-room/statements-releases/2024/03/23/fact-sheet-vice-president-harris-announces-gun-safety-solutions-while-continuing-efforts-to-keep-schools-safe-from-gun-violence/. Accessed 20 May 2024.

Gray, Sarah. “Here’s a Timeline of the Major Gun Control Laws in America.” Time, 22 Feb. 2018, time.com/5169210/us-gun-control-laws-history-timeline/. Accessed 22 May 2020.‌

Greaney, Joseph. "States Enact the Most New Extreme Risk Protection Order Laws since 2020." Ballotpedia News, 6 July 2023, news.ballotpedia.org/2023/07/06/states-enact-the-most-new-extreme-risk-protection-order-laws-since-2020/. Accessed 13 Dec. 2023.

“Homicide Rate by Mechanisms.” DataUNODC, United Nations Office on Drug and Crime, 2019, dataunodc.un.org/data/homicide/Homicide%20rate%20by%20mechanisms. Accessed 22 May 2020.

Jacobs, Sabrina, et al. "After the Uvalde Shooting, Majority of Voters Support Red Flag Laws and Stricter Gun Control." Data for Progress, 13 June 2022, www.dataforprogress.org/blog/2022/6/13/after-the-uvalde-shooting-majority-of-voters-support-red-flag-laws-and-stricter-gun-control. Accessed 1 Aug. 2022.

Jancer, Matt. “Gun Control Is as Old as the Old West.” Smithsonian Magazine, 5 Feb. 2018, www.smithsonianmag.com/history/gun-control-old-west-180968013/. Accessed 21 May 2020.

Lawlor, Joe. "Maine's Yellow Flag Law Used 14 Times since Lewiston Shootings." Portland Press Herald, 15 Nov. 2023, www.pressherald.com/2023/11/14/maines-yellow-flag-law-used-14-times-since-lewiston-shootings/. Accessed 12 Dec. 2023.

Rex, Kristina. "What's the Difference between Yellow and Red Flag Gun Laws?" WBZ CBS News Boston, 2 Nov. 2023, www.cbsnews.com/boston/news/yellow-red-flag-gun-laws-massachusetts-maine/. Accessed 11 Dec. 2023.

Segers, Grace. “What Are ‘Red Flag’ Laws, and Which States Have Implemented Them?” CBS News, 9 Aug. 2019, www.cbsnews.com/news/what-are-red-flag-laws-and-which-states-have-implemented-them. Accessed 21 May 2020.

Stolberg, Sheryl Gay. "A Florida School Received a Threat. Did a Red Flag Law Prevent a Shooting?" The New York Times, 16 Jan. 2023, www.nytimes.com/2023/01/16/us/politics/red-flag-laws-mass-shootings.html. Accessed 27 Feb. 2023.

Vasilogambros, Matt. "States Want to Make It Easier to Use Red Flag Laws." Pew Research Center, 27 June 2022, www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/06/27/states-want-to-make-it-easier-to-use-red-flag-laws. Accessed 1 Aug. 2022.

Walker, Jesse. “Choose Your Own Mass Shooting Statistics.” Reason, 3 Dec. 2015, reason.com/2015/12/03/choose-your-own-mass-shooting-statistics. Accessed 22 May 2020.

Williams, Timothy. “What Are ‘Red Flag’ Gun Laws, and How Do They Work?” The New York Times, 6 Aug. 2019, www.nytimes.com/2019/08/06/us/red-flag-laws.html. Accessed 21 May 2020.