Are Extreme Risk Protection Orders that take People’s Guns without Due Process a Violation of the 5th Amendment?
The 5th Amendment states: “nor be deprived of life, liberty, or property, without due process of law.” So how can Red Flag laws then take away a person’s guns (“property”) without Due Process? Under the plain reading of the text, the provision doesn’t allow people to be temporarily deprived of property without due process. But gun control advocates make that point:
Given that the Constitution allows emergency action to temporarily remove a person’s child before a full hearing, it’s hard to argue that it prohibits emergency action to temporarily remove a person’s guns. Quite simply, the Constitution does not require society to wait until the trigger is pulled. . . .
There is an important difference between a criminal and civil proceeding because criminal proceedings have afforded the accused substantial protections. Those drafting the Bill of Rights put in particularly important protections in criminal proceedings.
A big part of their argument is that there is strong support for these laws, though as we have pointed out before, these polling numbers defend crucially upon how these questions are asked. And of course their claims are also questionable (here and here).
There is strong popular support for red-flag laws — also known as extreme-risk laws — in both parties, and more than a dozen states have adopted them in the past few years (bringing the total to 19 plus the District of Columbia). Social science research suggests that they work, most strikingly in preventing gun suicides. . . .
The argument seems to be that since there is strong political support and they are effective, it is acceptable to at least temporarily deprive people of their property. But all parts of that argument are questionable. Even under a strict scrutiny balancing test, Red Flag laws couldn’t meet that test.
