Would Virginia’s red flag law withstand constitutional scrutiny? In other states, similar laws already have.

Would Virginia’s red flag law withstand constitutional scrutiny? In other states, similar laws already have.
Opponents of new gun control proposals rallied near the Capitol last month. (Source: Ryan Kelly/ Virginia Mercury)

As the Virginia General Assembly voted in favor of bills to establish a red flag law, Republicans in both chambers denounced the proposal as unconstitutional.

On the Senate floor last month, Sen. Bill Stanley, R-Franklin, said that in a rush to “dissolve the Second Amendment,” Democrats are “willing to sacrifice” other constitutional rights, like the right to not have your home searched or property taken without good reason.

“Why don’t we just be honest with ourselves… and let’s make the Commonwealth of Virginia a Bill of Rights-free state?,” Stanley said. “That is, that we are no longer bound by what the Founding Fathers told us were our most important gifts and rights. Because you’re doing it. Unabashedly.”

But in a handful of other states, including conservative ones, judges have already upheld laws empowering authorities to temporarily seize guns from people deemed dangerous to themselves or others.

At least three courts — in Indiana, Connecticut and Florida — have ruled that red flag laws, also known as extreme-risk or substantial-risk laws, fall within governments’ established powers to regulate firearms. While judicial interpretations of the Second Amendment can change, experts say the legal concepts behind risk-protection orders aren’t particularly novel or unique.

“The different details of the state laws may raise different questions,” said Jake Charles, executive director of the Center for Firearms Law at the Duke University School of Law. “But as a matter of structure, laws that allow for temporary infringement or temporary restrictions on important liberty interests are nothing new.”

Seventeen states and the District of Columbia have some form of a red-flag law, many of them adopted after the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla.

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The Virginia Mercury is a nonpartisan, nonprofit news organization covering Virginia government and policy.