The Corner

Politics & Policy

The NRA Hunts for a ‘Red Flag’ Law that Includes Due Process

Gun enthusiasts inspect firearms during the annual National Rifle Association convention in Dallas, Texas, May 5, 2018. (Lucas Jackson/Reuters)

Indianapolis, Ind. — One of the thornier issues facing the National Rifle Association in the state legislatures this year are “red flag” laws or emergency risk-protection orders, which are designed to take firearms away from an individual deemed to be a threat to themselves or others.

The NRA says that it supports the idea of these laws in general, but opposes the specific versions that have recently passed state legislatures.  The NRA’s position is:

  • Anyone subject to an ERPO should have the opportunity to challenge the order with full due-process protections in place.
  • An order that confiscates firearms should only be granted when a judge makes the determination, by clear and convincing evidence, that the person poses a significant risk of danger to themselves or others.
  • The judge should concurrently make a determination of whether the person meets the state standard for involuntary commitment.
  • Whether or not the person meets the state standard for involuntary commitment, the person subject to the ERPO should receive mental-health treatment.
  • The process should allow firearms to be retained by law-abiding third parties, local law enforcement, or a federally licensed firearms dealer when an individual is ordered to relinquish such firearms.
  • There should be a mechanism in place for the return of firearms upon termination of an ERPO.
  • The process should include criminal penalties for those who bring false or frivolous charges.

So far, none of the states that recently passed ERPO laws — including California, Oregon, Vermont — have met the NRA’s criteria, nor do the bills introduced in Texas and Tennessee this year.

The NRA grumbles that its position gets misconstrued and mischaracterized by both sides — gun-control groups paint the organization as being unwilling to take guns away from dangerous people, and other gun-rights organizations, eager to draw distinctions with the NRA, portray the association as sellouts who are amenable to gun confiscation. The NRA sees its position as simple: They support extreme risk-protection orders, as long as the process involved strongly protects both Second Amendment rights and due-process rights at the same time.

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