Red Flag Laws Disarm The Veteran Who Came Home Quiet

The Pattern The Data Shows

Twenty-one states have, since 2018, enacted versions of what the press calls red flag laws and what the statutes call extreme risk protection orders. The orders allow a court, on the application of a family member, a household member, or in some states a law enforcement officer, to temporarily seize firearms from a person alleged to pose a risk to themselves or others. The order operates ex parte at the front end. The respondent gets notice after the seizure. The respondent gets a hearing within a window the statute prescribes.

Inside the data that the issuing courts publish, the demographic that appears most often as the respondent in these orders is the population of military veterans, particularly veterans of the post-9/11 era. Veterans represent about 6 percent of the U.S. adult population. Veterans represent, by the available state-level reporting, between 14 and 23 percent of ERPO respondents in the twenty-one states where the data is published. The disparity is large. The disparity is not random. The disparity tells you what the statute is doing in practice, regardless of what the statute was advertised to do at passage.

Shall Not Be Infringed. Four Words. Not Complicated.

The Second Amendment says what it says. The text is short. The text admits of no other interpretation. The Supreme Court's decision in District of Columbia v. Heller in 2008 confirmed what the text already said. The Court's decision in McDonald v. Chicago in 2010 applied the right against the states. The Court's decision in New York State Rifle and Pistol Association v. Bruen in 2022 clarified the test for evaluating modern restrictions against the historical tradition the framers understood.

The Bruen test asks whether a modern firearms restriction has an analogue in the historical tradition of regulation at the time of the founding. The historical tradition does not include ex parte seizure of firearms from a person who has not been convicted of a crime, on the basis of a civil petition by a family member, with the respondent's due process compressed into a hearing window of days or weeks. Some lower courts have upheld ERPO statutes after Bruen. Some have struck them down. The doctrinal question is not closed. The Supreme Court has not yet taken the cert grant that would resolve it.

The Veteran's Specific Situation

The veteran's specific situation is the situation the statutes were not written to address but the situation the statutes are most frequently applied to. The veteran returns from deployment carrying what the Department of Veterans Affairs would call combat-related psychological injury. The veteran's family, concerned about behavior the family does not have the training to evaluate, contacts law enforcement or a judicial officer with the concern. The concern becomes the petition. The petition becomes the order. The order becomes the seizure.

I buried friends for this country. I have buried more friends to the system after they came home than I have to the enemy while they were deployed. The veterans I am describing did not need their firearms taken away. The veterans I am describing needed care, community, accountability, and the kind of patient presence that the VA system has spent two decades failing to consistently provide. The firearm was the symptom. The system that mistook the symptom for the disease has done damage that the statute's drafters did not anticipate.

The Due Process Issue

The due process issue is the issue the constitutional scholars focus on and the issue the press largely ignores. An ex parte order, issued without notice to the respondent and without opportunity to contest, is a tool the legal system reserves for narrow circumstances where the harm of delay is clear and immediate. Restraining orders in domestic violence cases are the historical example. The historical example involved an identified perpetrator, an identified victim, and an identified pattern of harm. The ERPO context typically involves none of those three.

The post-seizure hearing window varies by state. The window can be as short as 72 hours and as long as 21 days. During the window, the respondent's firearm rights are suspended. After the hearing, the order can be extended for a period the statute prescribes, typically up to one year, with renewal possible thereafter. The cumulative effect, for a respondent who never threatens anyone and who never had a behavioral pattern that warranted any seizure, can be the permanent loss of the right that the Constitution does not authorize anyone to permanently lose without conviction.

The Operational Read

For the record, the veterans community has been raising this issue with the relevant congressional committees for four years. The committees have, with varying seriousness, considered legislative responses. The legislative responses have, in their current form, been modest. They would tighten the standard of evidence required at the post-seizure hearing. They would require the issuing court to make specific findings about the respondent's veteran status and to consider treatment alternatives before extending the order beyond the initial window.

The reforms are real. The reforms do not address the structural question, which is whether the ex parte seizure architecture is consistent with the Constitution at all. That structural question belongs in the Supreme Court. The Supreme Court has not yet taken the case that puts it there. The lower courts that have ruled on the question have split. The split will eventually force a cert grant. Stand by.

What I Tell Veterans Who Ask

I tell veterans who ask me about the laws the same things every time. Know your state's statute by name and citation. If you are served with an order, do not surrender additional firearms beyond those named in the order. Contact a lawyer who specializes in firearm rights restoration in your state on the day you are served. Document everything. Do not communicate with the petitioner outside of attorney-supervised channels. Attend every hearing. Build your record.

The architecture of the right is the architecture of the country. We did not serve for this. The veterans who came home quiet did not serve to come home and find that the country they served had erected an administrative process to take away the right that the founders fought to secure. Full stop.