Citation

Pomeranz JL, Ochoa G. Am. J. Prev. Med. 2021; ePub(ePub): ePub.

Copyright

(Copyright © 2021, Elsevier Publishing)

DOI

10.1016/j.amepre.2021.03.007

PMID

unavailable

Abstract

Firearm violence is a significant public health problem in the U.S. In 2020, there were 610 mass shootings, the highest recorded number according to the Gun Violence Archive, which includes all shootings with ≥4 victims (other estimates more conservatively record shooting deaths and exclude certain types). More women are killed by guns in the U.S. than in all other high-income countries, with almost half killed by domestic partners. Previous research found that before an attempted suicide or homicide, there are warning signs that the shooter intends to act. States have enacted a variety of laws intended to prevent firearm violence, with a relatively new policy option that includes extreme risk protection order (ERPO) laws, also known as red flag laws. ERPOs provide law enforcement with the ability to temporarily remove or restrict firearms from a person at risk of harming themselves or others. Firearm removal during crisis situations provides a critical cooling-off period and time for mental health intervention or law enforcement investigation. Previous research found that firearm removal orders have deterred firearm suicides, reduced the risk of domestic partner homicide, and may prevent mass shootings. On the basis of these outcomes, in April 2021, President Biden urged Congress to pass a national ERPO law and legislation incentivizing states to pass ERPOS laws of their own.

Despite the potential benefits of ERPOs, in May 2020, Oklahoma passed the nation's first law preempting local governments from enacting ERPO laws. Preemption occurs when a higher level of government removes the authority of a lower level of government to act on the preempted topic. State legislatures use preemption to maintain control over policy topics in response to or in the absence of local policy making. States have enacted more preemptive laws in the context of gun control than over any other public health issue. Oklahoma's "anti-red flag" bill was one of several bills legislators proposed across the country, arguing that existing ERPO laws are unconstitutional.

Legal scholars have evaluated constitutional arguments supporting and opposing ERPO laws,7but to date, limited case law exists on their constitutionality. Connecticut and Indiana courts upheld their states' laws as not violating the Second Amendment's right to bear arms, including for self-defense. A Florida court found that the state's ERPO law provided appropriate due process protections. Although lower courts have upheld ERPO laws, state legislators proposing preemption have argued that ERPOs are unconstitutional for additional reasons. Further, the new makeup of the U.S. Supreme Court leaves much uncertainty.
The goal of this article was to describe the current state of ERPO laws and identify the constitutional arguments that may arise when stakeholders seek to enact ERPO laws in their states and communities. As such, this article examines state ERPO laws and preemptive legislation and identifies the constitutional arguments state legislators made to support ERPO preemption.

Language: en