Firearms, Extreme Risk, and Legal Design: “Red Flag” Laws and Due Process

Article — Volume 106, Issue 6

106 Va. L. Rev. 1285
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*Blocher is the Lanty L. Smith ’67 Professor of Law, Duke University School of Law. Charles is the Lecturing Fellow & Executive Director, Center for Firearms Law, Duke University School of Law. Many thanks to Saul Cornell, Dave Kopel, Anne Levinson, Darrell Miller, Kelly Roskam, Eric Ruben, Jeff Swanson, Fredrick Vars, Julia Weber, Shawn Fields, and Tim Zick for invaluable comments and feedback, as well as to the participants at the University of Alabama School of Law symposium, “Seeing Red: Risk-Based Gun Regulation.”Show More

Extreme risk protection order (“ERPO”) laws—often called “red flag” laws—permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of the Parkland murders, such orders are now authorized by law in nineteen states and the District of Columbia and under consideration in many others. Advocates argue that they provide a tailored, individualized way to deter homicide, suicide, and even mass shootings by providing a tool for law enforcement or others to intervene when harm appears imminent, without having to wait for injury, lethality, or criminal actions to occur. But the laws have also garnered criticism and have become a primary target of the Second Amendment sanctuary movement.

As a matter of constitutional law, the most serious questions about ERPO laws involve not the right to keep and bear arms but due process. Such orders—like domestic violence restraining orders, to which they are often compared—can initially be issued ex parte, and critics often allege that this feature (and others including the burden of proof) raises constitutional problems.

This Article provides a comprehensive analysis of the applicable due process standards and identifies the primary issues of concern. It concludes that, despite some variation, current ERPOs generally satisfy the relevant standards. It also notes those features that are likely to give rise to the strongest challenges. The analysis both builds on and suggests lessons for other areas of regulation where laws are designed so as to lessen extreme risk.

Introduction

What process is due when people who pose an extreme risk of harm to themselves or others are temporarily deprived of a constitutional right? What design choices can legislators make to ensure that such deprivations provide constitutionally adequate protections?

Although such questions have arisen in many different contexts, including domestic violence restraining orders and civil commitments, they are now front and center for what is arguably the most important current development in firearms regulation: the spread of “extreme risk” or “red flag” laws that permit courts to order that firearms be temporarily removed from individuals who pose an imminent risk of harm to themselves or others. Advocates see these laws as an effective, targeted way to save lives while respecting the Second Amendment.1.See infra Section I.A.Show More Critics allege that they amount to “pre-crime” punishment and that they violate not only the right to keep and bear arms but also the due process guarantee.2.See infra note 159 and accompanying text (“pre-crime” comparison); infra notes 81–88 and accompanying text (Second Amendment critique); infra notes 29–30 (due process critique).Show More In fact, opposition to extreme risk laws has helped fuel the “Second Amendment sanctuary” movement, by which some local governments have pledged their refusal to enforce state and federal gun laws.3.Noah Shepardson, America’s Second Amendment Sanctuary Movement Is Alive and Well, Reason (Nov. 21, 2019, 4:00 PM), https://reason.com/2019/11/21/americas-second-amendment-sanctuary-movement-is-alive-and-well/ [https://perma.cc/XKV7-ADF4]; see also Scott Pelley, A Look at Red Flag Laws and the Battle Over One in Colorado, 60 Minutes, CBS News (Nov. 17, 2019), https://www.cbsnews.com/news/red-flag-gun-laws-a-standoff-in-colorado-60-minutes-2019-11-17/ [https://perma.cc/GF5D-BSH2] (examining Second Amendment sanctuaries in Colorado).Show More

Behind the political claims lies an enormously important and difficult set of questions regarding the ways in which the law can be constitutionally designed to account for risky-but-not-criminal behavior. Judges and scholars have long recognized that laws regulating on the basis of future risk raise a different and in many ways harder set of questions than those that, for example, punish prior behavior.4.Both categories, of course, may well be based on prior behavior—in the former set, that behavior is evidence of future risk; in the latter, it is the basis for retribution or some other governmental interest.Show More On the one hand, the law often restricts behavior on the basis of predictions. Even basic cost-benefit analysis—which is foundational to the regulatory state5.See Richard L. Revesz & Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health910 (2008) (noting that the use of cost-benefit analysis has been a contentious issue in regulatory policy making for decades); Cass R. Sunstein, The Cost-Benefit Revolution34, 67 (2018) (describing how successive Presidents since Ronald Reagan have required that regulations promulgated during their administrations be justified on a cost-benefit basis).Show More—is largely forward-looking. Regulation of risk, in short, is nothing new.6.Nor, for that matter, is the notion that regulation often involves trading off one risk against another: denying a firearm to a particular person might lower the risk that he will misuse it, while raising the risk that he will be unable to defend himself in a time of need. For an influential analysis of the tradeoff question, seeRisk Versus Risk: Tradeoffs in Protecting Health and the Environment 3­–5 (John D. Graham & Jonathan Baert Wiener eds., 1995).Show More

But when such regulation intersects with constitutional rights and interests in the absence of a criminal conviction or its equivalent, harder questions arise about the necessary procedures and evidentiary burdens. Intuitively, restraining a person who has harmed others is different from restraining someone who is only at risk of doing so. There is no bright line: civil commitments, restraining orders, and the like all impose significant restraints in an effort to prevent future harms and are not categorically unconstitutional. Scholars have explored those related contexts7.For a sampling of the literature regarding involuntary commitments for mental illness, seeDavid L. Bazelon, Institutionalization, Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev. 897, 899–900 (1975) (asking “[i]s confinement on the basis of ‘dangerousness’ alone constitutional?” and providing a skeptical answer); Veronica J. Manahan, When Our System of Involuntary Civil Commitment Fails Individuals with Mental Illness: Russell Weston and the Case for Effective Monitoring and Medication Delivery Mechanisms, 28 Law & Psych. Rev. 1, 32 (2004) (“Civil liberty concerns, as evidenced by the extensive due process protections afforded to those facing involuntary commitment, and the state’s interest in protecting all of its citizens, are fundamentally at odds.”); Alexander Tsesis, Due Process in Civil Commitments, 68 Wash. & Lee L. Rev. 253, 300–01 (2011) (arguing that civil commitment should require a beyond-a-reasonable-doubt standard of proof).Scholars have also explored due process protections as they apply to domestic violence restraining orders (“DVROs”) and similar legal restrictions. See, e.g., Shawn E. Fields, Debunking the Stranger-in-the-Bushes Myth: The Case for Sexual Assault Protection Orders, 2017 Wis. L. Rev. 429, 484 (arguing that sexual assault protection orders—which are different from DVROs—“should employ the lower preponderance-of-the-evidence standard to ensure that victims have an effective mechanism to seek prospective relief and governments have an effective tool in combating the sexual assault epidemic” and stating “[h]owever, procedural due process may require a more nuanced approach with respect to the types of evidentiary showings necessary to meet this standard and with the types of prospective relief available to petitioners”).Show More but have only recently devoted attention to these questions in the context of extreme risk laws,8.Timothy Zick, The Constitutional Case for “Red Flag” Laws, Jurist (Dec. 6, 2019, 8:39 PM), https://www.jurist.org/commentary/2019/12/timothy-zick-red-flag-laws/ [https://perm a.cc/G3TS-L53G]. Other scholars have looked at the due process implications of other types of similar statutory mechanisms, like DVROs with specific firearm prohibitions, Aaron Edward Brown, This Time I’ll Be Bulletproof: Using Ex Parte Firearm Prohibitions to Combat Intimate-Partner Violence, 50 Colum. Hum. Rts. L. Rev. 159, 196–98 (2019) (arguing that domestic violence ex parteorders for protection that prohibit firearm possession can survive due process challenges), or laws designed to disarm those in the throes of severe mental health crises, Fredrick E. Vars, Symptom-Based Gun Control, 46 Conn. L. Rev. 1633, 1646–47 (2014) (arguing that a law allowing temporary firearm removal from individuals suffering delusions or hallucinations would not violate due process). None, so far, has assessed the new spate of extreme risk laws passed predominantly in the last two years.Show More and this Article is the first to provide an in-depth examination of the due process issues they raise. (These are often called “red flag” laws, though that label might convey a stigma, so we will use the increasingly common “extreme risk” label.9.See Red Flag Laws: Examining Guidelines for State Action: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (2019) (statement of Ronald Honberg, Senior Policy Advisor, National Alliance on Mental Illness) (describing the risk that “red flag” language can stigmatize individuals with mental illness).Show More)

In the past two years alone, a dozen states have adopted or expanded such laws. Although the details vary, their form is similar: law enforcement officers or sometimes family members or other professionals can petition a court for an extreme risk protection order (“ERPO”)10 10.In California, the order is known as a “gun violence restraining order” or “GVRO.” Cal. Penal Code § 18100 (Deering Supp. 2020).Show More that would require a person to surrender his or her firearms and refrain from acquiring new ones. After receiving the petition, the court can enter a short-term, ex parte ERPO if the petitioner carries his or her burden of proof (which can range from showing “good cause” to “clear and convincing” evidence11 11.See infra notes 302–09 and accompanying text; see also infra Section II.B (discussing constitutional principles for establishing burden of proof and how they should apply in the ERPO context).Show More). After a full, adversary hearing—at which petitioner again bears the burden of proof—the court can enter a lengthier, but still temporary, ERPO.12 12.See infranote 309 and accompanying text.Show More

Politically and empirically, it is easy to see why such laws are increasingly popular. They provide tailored, individualized risk assessments, rather than regulating people’s access to firearms based on their membership in broad classes like felons or the mentally ill.13 13.See infraSubsection I.B.1.Show MoreAnd although scholars are just beginning to evaluate the effectiveness of these new laws, early studies have shown encouraging results.14 14.See infra notes 70–82 and accompanying text. That extreme risk laws might be effective does not make them a panacea, nor should they distract from other forms of effective gun regulation. SeeJoseph Pomianowski & Ling Liang Dong, Red Flag Laws Are Red Herrings of Gun Control, Wired (Sept. 9, 2019, 9:00 AM), https://www.wired.com/story/red-flag-laws-are-red-herrings-of-gun-control/ [https://perma.cc/PSN8-B2UK].Show More This all points to ERPOs being an increasingly important part of the debate about gun rights and regulation going forward.

Of course, there are critics. Some argue that extreme risk laws violate the right to keep and bear arms.15 15.Ivan Pereira, Lawmaker Introduces ‘Anti-Red Flag’ Bill in Georgia To Combat Gun Control Proposals, ABC News (Jan. 15, 2020, 12:52 PM), https://abcnews.go.com/­US/lawmaker-introduces-anti-red-flag-bill-georgia-combat/story?id=68299434 [https://perm a.cc/7V9S-7CMX] (describing legislation introduced in Georgia to forbid extreme risk laws that bears the title “Anti-Red Flag—Second Amendment Conservation Act”).Show More These critics challenge the very notion of a law that allows disarming individuals who have not committed any crime. District of Columbia v. Heller, after all, said the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”16 16.554 U.S. 570, 635 (2008) (emphasis added).Show More

The focus on the right to keep and bear arms is unsurprising, given the magnetic pull of the Second Amendment in nearly any political or legal discussion of gun regulation; the tendency is often to evaluate any proposed rule related to firearms for its conformity with that right in particular.17 17.See generally Joseph Blocher, Gun Rights Talk, 94 B.U. L. Rev. 813 (2014) (arguing that the invocation of the Second Amendment in debates over proposed gun control laws has defeated many of these measures).Show More But a myopic focus on the Second Amendment unnecessarily flattens the gun debate and minimizes different—and often stronger—constitutional claims.18 18.A federal court in California, for example, blocked on First Amendment grounds a Los Angeles law that would have required city contractors to disclose ties to the NRA. As the NRA put it, the “First Amendment Defends the Second.” See First Amendment Defends the Second, NRA-ILA (Dec. 16, 2019), https://www.nraila.org/articles/20191216/first-amendment-defends-the-second [https://perma.cc/L5TF-6PVS].Show More More generally, it demonstrates the importance of firearms law and scholarship which consider how gun rights intersect with other constitutional rights, including those emanating from the First,19 19.See, e.g., Timothy Zick, Arming Public Protests, 104 Iowa L. Rev. 223, 236–37 (2018) (considering, interalia, the First Amendment rights of speech and assembly and their interaction with the Second Amendment); Luke Morgan, Note, Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations, 68 Duke L.J. 175, 179, 211–13 (2018) (same).Show More Fourth,20 20.See, e.g., Jeffrey Bellin, The Right To Remain Armed, 93 Wash. U. L. Rev. 1, 4–5 (2015) (considering implications for search and seizure).Show More and Fourteenth21 21.See, e.g., Pratheepan Gulasekaram, “The People” of the Second Amendment: Citizenship and the Right to Bear Arms, 85 N.Y.U. L. Rev. 1521, 1538 (2010) (illustrating and analyzing the difficulties of limiting “the people” to non-citizens).Show More Amendments.22 22.Not only do these other rights and interests intersect with the Second Amendment in important ways, but the courts have also borrowed from many of these frameworks when fleshing out the contours of the right to keep and bear arms. SeeJacob D. Charles, Constructing a Constitutional Right: Borrowing and Second Amendment Design Choices, 99 N.C. L. Rev. (forthcoming 2021) (manuscript at 1–2) (on file with the Virginia Law Review) (describing how courts and commentators have borrowed from other constitutional rights domains in creating a framework for the Second Amendment).Show More

In this increasingly rich and diverse area of constitutional law, scholarship, and rhetoric, due process has a particularly notable role to play. Consider the debate over “No Fly No Buy,” which would have forbidden gun purchases by those on the federal terror watch list. The proposal had broad23 23.See, e.g., Press Release, Quinnipiac Univ., Overwhelming Support for No-Fly, No-Buy Gun Law, Quinnipiac University National Poll Finds; Support for Background Checks Tops 90 Percent Again (June 30, 2016), https://poll.qu.edu/national/release-detail?ReleaseID=2364 [https://perma.cc/C74J-XGWG].Show More and bipartisan24 24.David M. Herszenhorn, Bipartisan Senate Group Proposes ‘No Fly, No Buy’ Gun Measure, N.Y. Times (June 21, 2016), https://www.nytimes.com/2016/06/22/us/politics/ senate-gun-control-no-fly-list-terrorism.html [https://perma.cc/4J99-TKVT].Show More political support. Some critics predictably argued that it violated the Second Amendment,25 25.See, e.g., Chris W. Cox, Gun Laws Don’t Deter Terrorists: Opposing View, USA Today (June 14, 2016, 1:01 AM), https://www.usatoday.com/story/opinion/2016/06/13/gun-laws-deter-terrorists-opposing-view/85844946/ [https://perma.cc/Q6S7-9C52].Show More but as a matter of doctrine the more serious objections had to do with due process.26 26.See Hina Shamsi & Christopher Anders, The Use of Error-Prone and Unfair Watchlists Is Not the Way To Regulate Guns in America, ACLU (June 20, 2016, 2:45 PM), https://www.aclu.org/blog/washington-markup/use-error-prone-and-unfair-watchlists-not-way-regulate-guns-america [https://perma.cc/YA9S-NYBS]; see also Joseph Greenlee, No Fly, No Buy (And No Due Process), Federalist Soc’y (Feb. 17, 2016), http://www.fed-soc.org/blog/detail/no-fly-no-buy-and-no-due-process [https://perma.cc/V4U6-7ERV].Show More Partly as a result, the proposal ultimately died in the Senate.27 27.Lisa Mascaro & Jill Ornitz, Senate Rejects New Gun Sales Restrictions, L.A. Times, June 21, 2016, at A8.Show More

A similar dynamic seems to be at work with ERPOs, except that the consequences are far more important, since such laws have been widely adopted.28 28.See infra Section I.A (describing the spread of extreme risk laws).Show More Although the Second Amendment continues to draw much of the attention, the more substantive and pressing concern is whether ERPOs violate gun owners’ due process rights. When the Senate held a hearing in 2019 about possibly providing federal incentives for state extreme risk laws, due process concerns were front and center.29 29.Marianne Levine, Senate GOP Open to States Allowing Narrow Gun Restriction, Politico (Mar. 26, 2019, 1:05 PM), https://www.politico.com/story/2019/03/26/senate-republicans-state-gun-law-reform-1237446 [https://perma.cc/F32F-F6EQ].Show More Indeed, in some areas of the states that have adopted extreme risk laws, local officials have vowed not to implement them. One Colorado sheriff put the critique bluntly: “This is the only bill I know of that allows law enforcement officers to take somebody’s property without due process.”30 30.Governor Polis Signs ERPO Into Law, Delta Cnty. Indep. (Apr. 17, 2019), https://www.deltacountyindependent.com/governor-polis-signs-erpo-into-law-cms-15033 [https://perma.cc/S2N7-NW6M].Show More

But, of course, that assumes the answer to the central question: do extreme risk laws provide due process? If so, then “due process” objections should be recognized for what they are: political rhetoric, rather than doctrinal claims.31 31.To be clear, we do not suppose that there is a bright line between “constitutional” and “political” claims—constitutional law and argument often occur outside the courts, and in fact the Second Amendment provides an especially robust and interesting example in that regard. SeeJacob D. Charles, The Right To Keep and Bear Arms Outside the Second Amendment 7 (Feb. 23, 2020) (unpublished manuscript) (on file with the Virginia Law Review).Show More If not, then no amount of political or empirical support will suffice, and this promising new avenue of gun regulation will be shut down by the courts.

This Article examines that question. Part I explains the spread and substance of current extreme risk laws. The wave of new extreme risk laws has encountered opposition from those who claim, often with little attention to the details of the different statutory regimes and the variety among them, that they violate due process. Part II lays out the relevant requirements of due process and applies that framework to the extreme risk context. Such an analysis can, we hope, be useful to lawmakers, litigants, judges, and scholars interested in designing or evaluating the constitutionality of extreme risk laws. Although we do not undertake an exhaustive or individualized assessment of various state laws, we conclude that the basic structure of existing extreme risk laws satisfies the requirements of due process.

The point of the analysis, however, is not to provide a blanket constitutional defense of extreme risk laws. The goal instead is to identify and explore an engaging set of constitutional issues raised by a new wave of firearm regulations. Those issues, in turn, are relevant to our understanding of how the Constitution intersects with risk regulation, and what options society has to protect itself from potential harms.

  1. * Lanty L. Smith ’67 Professor of Law, Duke University School of Law.
  2. ** Lecturing Fellow & Executive Director, Center for Firearms Law, Duke University School of Law.

    Many thanks to Saul Cornell, Dave Kopel, Anne Levinson, Darrell Miller, Kelly Roskam, Eric Ruben, Jeff Swanson, Fredrick Vars, Julia Weber, Shawn Fields, and Tim Zick for invaluable comments and feedback, as well as to the participants at the University of Alabama School of Law symposium, “Seeing Red: Risk-Based Gun Regulation.”

  3. See infra Section I.A.
  4. See infra note 159 and accompanying text (“pre-crime” comparison); infra notes 81–88 and accompanying text (Second Amendment critique); infra notes 29–30 (due process critique).
  5. Noah Shepardson, America’s Second Amendment Sanctuary Movement Is Alive and Well, Reason (Nov. 21, 2019, 4:00 PM), https://reason.com/2019/11/21/americas-
    second-amendment-sanctuary-movement-is-alive-and-well/ [https://perma.cc/XKV7-ADF4]; see also Scott Pelley, A Look at Red Flag Laws and the Battle Over One in Colorado, 60 Minutes, CBS News (Nov. 17, 2019), https://www.cbsnews.com/news/red-flag-gun-laws-a-standoff-in-colorado-60-minutes-2019-11-17/ [https://perma.cc/GF5D-BSH2] (examining Second Amendment sanctuaries in Colorado).
  6. Both categories, of course, may well be based on prior behavior—in the former set, that behavior is evidence of future risk; in the latter, it is the basis for retribution or some other governmental interest.
  7. See Richard L. Revesz & Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health
    9

    10

    (2008) (noting that the use of cost-benefit analysis has been a contentious issue in regulatory policy making for decades); Cass R. Sunstein, The Cost-Benefit Revolution

    3

    4, 6–7

    (2018) (describing how successive Presidents since Ronald Reagan have required that regulations promulgated during their administrations be justified on a cost-benefit basis).

  8. Nor, for that matter, is the notion that regulation often involves trading off one risk against another: denying a firearm to a particular person might lower the risk that he will misuse it, while raising the risk that he will be unable to defend himself in a time of need. For an influential analysis of the tradeoff question, see Risk Versus Risk: Tradeoffs in Protecting Health and the Environment 3­–5 (John D. Graham & Jonathan Baert Wiener eds., 1995).
  9. For a sampling of the literature regarding involuntary commitments for mental illness, see David L. Bazelon, Institutionalization, Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev
    .

    897, 899–900 (1975) (asking “[i]s confinement on the basis of ‘dangerousness’ alone constitutional?” and providing a skeptical answer); Veronica J. Manahan, When Our System of Involuntary Civil Commitment Fails Individuals with Mental Illness: Russell Weston and the Case for Effective Monitoring and Medication Delivery Mechanisms, 28 Law & Psych. Rev

    .

    1, 32 (2004) (“Civil liberty concerns, as evidenced by the extensive due process protections afforded to those facing involuntary commitment, and the state’s interest in protecting all of its citizens, are fundamentally at odds.”); Alexander Tsesis, Due Process in Civil Commitments, 68 Wash. & Lee L. Rev

    .

    253, 300–01 (2011) (arguing that civil commitment should require a beyond-a-reasonable-doubt standard of proof).

    Scholars have also explored due process protections as they apply to domestic violence restraining orders (“DVROs”) and similar legal restrictions. See, e.g., Shawn E. Fields, Debunking the Stranger-in-the-Bushes Myth: The Case for Sexual Assault Protection Orders, 2017 Wis. L. Rev. 429, 484 (arguing that sexual assault protection orders—which are different from DVROs—“should employ the lower preponderance-of-the-evidence standard to ensure that victims have an effective mechanism to seek prospective relief and governments have an effective tool in combating the sexual assault epidemic” and stating “[h]owever, procedural due process may require a more nuanced approach with respect to the types of evidentiary showings necessary to meet this standard and with the types of prospective relief available to petitioners”).

  10. Timothy Zick, The Constitutional Case for “Red Flag” Laws, Jurist (Dec. 6, 2019, 8:39 PM), https://www.jurist.org/commentary/2019/12/timothy-zick-red-flag-laws/ [https://perm a.cc/G3TS-L53G]. Other scholars have looked at the due process implications of other types of similar statutory mechanisms, like DVROs with specific firearm prohibitions, Aaron Edward Brown, This Time I’ll Be Bulletproof: Using Ex Parte Firearm Prohibitions to Combat Intimate-Partner Violence, 50 Colum. Hum. Rts. L. Rev. 159, 196–98 (2019) (arguing that domestic violence ex parte orders for protection that prohibit firearm possession can survive due process challenges), or laws designed to disarm those in the throes of severe mental health crises, Fredrick E. Vars, Symptom-Based Gun Control, 46 Conn. L. Rev
    .

    1633, 1646–47 (2014) (arguing that a law allowing temporary firearm removal from individuals suffering delusions or hallucinations would not violate due process). None, so far, has assessed the new spate of extreme risk laws passed predominantly in the last two years.

  11. See Red Flag Laws: Examining Guidelines for State Action: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (2019) (statement of Ronald Honberg, Senior Policy Advisor, National Alliance on Mental Illness) (describing the risk that “red flag” language can stigmatize individuals with mental illness).
  12. In California, the order is known as a “gun violence restraining order” or “GVRO.” Cal. Penal Code § 18100 (Deering Supp. 2020).
  13. See infra notes 302–09 and accompanying text; see also infra Section II.B (discussing constitutional principles for establishing burden of proof and how they should apply in the ERPO context).
  14. See infra note 309 and accompanying text.
  15. See infra Subsection I.B.1.
  16. See infra notes 70–82 and accompanying text. That extreme risk laws might be effective does not make them a panacea, nor should they distract from other forms of effective gun regulation. See Joseph Pomianowski & Ling Liang Dong, Red Flag Laws Are Red Herrings of Gun Control, Wired (Sept. 9, 2019, 9:00 AM), https://www.wired.com/story/red-flag-laws-are-red-herrings-of-gun-control/ [https://perma.cc/PSN8-B2UK].
  17. Ivan Pereira, Lawmaker Introduces ‘Anti-Red Flag’ Bill in Georgia To Combat Gun Control Proposals, ABC News (Jan. 15, 2020, 12:52 PM), https://abcnews.go.com/­US/lawmaker-introduces-anti-red-flag-bill-georgia-combat/story?id=68299434 [https://perm a.cc/7V9S-7CMX] (describing legislation introduced in Georgia to forbid extreme risk laws that bears the title “Anti-Red Flag—Second Amendment Conservation Act”).
  18. 554 U.S. 570, 635 (2008) (emphasis added).
  19. See generally Joseph Blocher, Gun Rights Talk, 94 B.U. L. Rev. 813 (2014) (arguing that the invocation of the Second Amendment in debates over proposed gun control laws has defeated many of these measures).
  20. A federal court in California, for example, blocked on First Amendment grounds a Los Angeles law that would have required city contractors to disclose ties to the NRA. As the NRA put it, the “First Amendment Defends the Second.” See First Amendment Defends the Second, NRA-ILA (Dec. 16, 2019), https://www.nraila.org/articles/20191216/first-amendment-defends-the-second [https://perma.cc/L5TF-6PVS].
  21. See, e.g., Timothy Zick, Arming Public Protests, 104 Iowa L. Rev. 223, 236–37 (2018) (considering, inter alia, the First Amendment rights of speech and assembly and their interaction with the Second Amendment); Luke Morgan, Note, Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations, 68 Duke L.J
    .

    175, 179, 211–13 (2018) (same).

  22. See, e.g., Jeffrey Bellin, The Right To Remain Armed, 93 Wash. U. L. Rev
    .

    1, 4–5 (2015) (considering implications for search and seizure).

  23. See, e.g., Pratheepan Gulasekaram, “The People” of the Second Amendment: Citizenship and the Right to Bear Arms, 85 N.Y.U. L. Rev
    .

    1521, 1538 (2010) (illustrating and analyzing the difficulties of limiting “the people” to non-citizens).

  24. Not only do these other rights and interests intersect with the Second Amendment in important ways, but the courts have also borrowed from many of these frameworks when fleshing out the contours of the right to keep and bear arms. See Jacob D. Charles, Constructing a Constitutional Right: Borrowing and Second Amendment Design Choices, 99 N.C. L. Rev. (forthcoming 2021) (manuscript at 1–2) (on file with the Virginia Law Review) (describing how courts and commentators have borrowed from other constitutional rights domains in creating a framework for the Second Amendment).
  25. See, e.g., Press Release, Quinnipiac Univ., Overwhelming Support for No-Fly, No-Buy Gun Law, Quinnipiac University National Poll Finds; Support for Background Checks Tops 90 Percent Again (June 30, 2016), https://poll.qu.edu/national/release-detail?ReleaseID=2364 [https://perma.cc/C74J-XGWG].
  26. David M. Herszenhorn, Bipartisan Senate Group Proposes ‘No Fly, No Buy’ Gun Measure, N.Y. Times (June 21, 2016), https://www.nytimes.com/2016/06/22/us/politics/ senate-gun-control-no-fly-list-terrorism.html [https://perma.cc/4J99-TKVT].
  27. See, e.g., Chris W. Cox, Gun Laws Don’t Deter Terrorists: Opposing View, USA Today (June 14, 2016, 1:01 AM), https://www.usatoday.com/story/opinion/2016/06/13/gun-laws-deter-terrorists-opposing-view/85844946/ [https://perma.cc/Q6S7-9C52].
  28. See Hina Shamsi & Christopher Anders, The Use of Error-Prone and Unfair Watchlists Is Not the Way To Regulate Guns in America, ACLU (June 20, 2016, 2:45 PM), https://www.aclu.org/blog/washington-markup/use-error-prone-and-unfair-watchlists-not-way-regulate-guns-america [https://perma.cc/YA9S-NYBS]; see also Joseph Greenlee, No Fly, No Buy (And No Due Process), Federalist Soc’y (Feb. 17, 2016), http://www.fed-soc.org/blog/detail/no-fly-no-buy-and-no-due-process [https://perma.cc/V4U6-7ERV].
  29. Lisa Mascaro & Jill Ornitz, Senate Rejects New Gun Sales Restrictions, L.A. Times
    ,

    June 21, 2016, at A8.

  30. See infra Section I.A (describing the spread of extreme risk laws).
  31. Marianne Levine, Senate GOP Open to States Allowing Narrow Gun Restriction, Politico (Mar. 26, 2019, 1:05 PM), https://www.politico.com/story/2019/03/26/senate-republicans-state-gun-law-reform-1237446 [https://perma.cc/F32F-F6EQ].
  32. Governor Polis Signs ERPO Into Law, Delta Cnty. Indep. (Apr. 17, 2019), https://www.deltacountyindependent.com/governor-polis-signs-erpo-into-law-cms-15033 [https://perma.cc/S2N7-NW6M].
  33. To be clear, we do not suppose that there is a bright line between “constitutional” and “political” claims—constitutional law and argument often occur outside the courts, and in fact the Second Amendment provides an especially robust and interesting example in that regard. See Jacob D. Charles, The Right To Keep and Bear Arms Outside the Second Amendment 7 (Feb. 23, 2020) (unpublished manuscript) (on file with the Virginia Law Review).

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  Volume 106 / Issue 6  

Weaponizing the First Amendment: An Equality Reading

This Article traces how and why the First Amendment has gone from a shield of the powerless to a sword of the powerful in the past hundred years. The central doctrinal role of “content neutrality” and “viewpoint neutrality” in this development is …

By Catharine A. MacKinnon
106 Va. L. Rev. 1223

Firearms, Extreme Risk, and Legal Design: “Red Flag” Laws and Due Process

Extreme risk protection order (“ERPO”) laws—often called “red flag” laws—permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of …

By Joseph Blocher & Jacob D. Charles
106 Va. L. Rev. 1285

Conflicts of Precedent

The law of the circuit doctrine requires three-judge panels in the federal courts of appeals to give stare decisis effect to past decisions of the circuit, which can only be overruled by the circuit sitting en banc or by the U.S. Supreme Court. This …

By Henry J. Dickman
106 Va. L. Rev. 1345