I was wrong about Red Flag laws

In 2019, I wrote a piece titled Why Gun Owners Should Support Risk Protection Orders. It was an appeal to reason. A call for balance. A belief that, somewhere between “do nothing” and “take the guns first,” there existed a policy tool that could prevent tragedy without sacrificing liberty. At the time, I believed red flag laws—when carefully crafted with due process protections—offered a life-saving compromise.

I was wrong.

Not wrong in my desire to protect innocent lives. That will never change. I was wrong in assuming that government actors would exercise this power narrowly, judiciously, and in accordance with constitutional rights. I assumed safeguards would be followed. I assumed courts would demand due process before infringing on fundamental liberties.

I was wrong to assume that the same bureaucratic and judicial systems that failed my daughter Alaina at every level would suddenly get it right when granted even more power.

Over the last five years, we’ve seen how red flag laws—also known as extreme risk protection orders (ERPOs)—have metastasized from a narrowly defined emergency tool into a dangerously subjective mechanism used to disarm citizens before they’ve committed a crime, often without adequate notice or opportunity to defend themselves.

California: Disarm First, Justify Later

California has one of the broadest red flag laws in the country. It allows not only family and law enforcement to petition for an ERPO, but also co-workers, teachers, and even roommates. In some counties, orders are issued without the subject ever knowing until police are at their door. A 2023 audit revealed significant disparities in how the law is applied across counties—some aggressively pursuing ERPOs, others rarely using them. And in a growing number of cases, individuals have had firearms seized based on nothing more than vague claims of “concerning behavior” or political opinions expressed online.

Colorado: Failure to Flag the Known

Colorado’s ERPO law was passed after the Aurora theater shooting, but when it was truly put to the test—before the 2023 Club Q mass shooting in Colorado Springs—it failed. The shooter had a long history of violent threats, including a bomb threat that led to a standoff with police. Yet no ERPO was filed. El Paso County had declared itself a “Second Amendment sanctuary” and local law enforcement simply declined to use the red flag law. In other words, even when ERPOs might have worked, they weren’t used—either due to lack of training, political resistance, or institutional confusion.

Florida: A Tale of Two Courts

Florida’s version of the red flag law was enacted after the tragedy at Marjory Stoneman Douglas High School. I supported it then. It seemed narrow, required a judge’s approval, and had built-in review mechanisms. But even in Florida, the law has drifted. While some counties, like Pinellas, issue ERPOs with relative restraint, others, often with little transparency about evidentiary standards or appeal timelines. These orders are almost always issued ex parte (without the accused present) and seizures sometimes continue even after threats were found to be unfounded.

Ex Parte Orders Without the Accused Present

Emergency Risk Protection Orders are issued without notifying the gun owner beforehand. A judge hears only one side of the story—typically from a law enforcement officer, family member, or other petitioner—and can authorize the immediate seizure of someone’s firearms. The accused doesn’t have an opportunity to defend themselves or even know the proceeding is happening until officers arrive to take their guns.

This may be legally allowed under red flag statutes, but it raises serious constitutional red flags—particularly with respect to the Second Amendment and the Fifth and Fourteenth Amendments, which guarantee due process.

 Continued Firearm Seizures After Claims Are Disproven

In some cases, even after a court later finds that the person did not pose a credible threat, or that the original report was exaggerated, biased, or flat-out wrong, the individual still faces delayed or denied return of their firearms.

This happens for several reasons:

• Bureaucratic delays or administrative reluctance to return weapons.
• Judges erring on the side of caution, extending orders beyond what the facts support.
• Local policies that treat reinstatement of gun rights as a separate process, placing the burden on the accused.

In short, the system is often rigged against the person who was wrongly targeted. Even when they’re cleared, getting their rights—and their property—back can be a long, expensive fight.

This isn’t justice. It’s pre-crime theater.

I wanted ERPOs to work because I wanted a policy that could stop a Parkland or a Buffalo or a Nashville. I believed there had to be a constitutional way to empower law enforcement and the courts to act when someone was clearly spiraling toward violence. But the cost has proven too high—and the benefits far too speculative.

Let me be clear: red flag laws still sound reasonable to many Americans. But their implementation tells a different story. We’ve seen law enforcement agencies resist them when the standards are too vague. We’ve seen judges issue orders without full hearings. We’ve seen them used disproportionately, sometimes weaponized in domestic disputes. And worst of all, there’s no meaningful evidence that they stop mass shootings. In fact, many of the attackers who should’ve raised red flags were never flagged at all.

The truth is this: We already have tools to stop dangerous individuals. Involuntary commitment laws. Baker Acts. Criminal charges when threats are made. What we need is the political and institutional will to use those tools consistently—not a workaround that tramples constitutional rights in the name of “doing something.”

I don’t retract my motivations for supporting red flag laws. I wanted to save lives. I still do. But after seeing how these laws have evolved, and how easily they’re abused or applied unevenly, I no longer believe they are compatible with the Second Amendment—or the presumption of innocence.

We can—and must—do better. We can harden schools, invest in threat assessment teams, improve law enforcement to response, and improve mental health systems without turning due process into a political casualty.

It’s not easy to admit when you were wrong. But the price of staying wrong, in the face of growing evidence, is far greater.