Most states and the federal government restrict gun possession by people who pose a danger to others, whether through red flag laws, also known as extreme risk protection orders (ERPOs), or through the federal ban on firearm possession by people subject to domestic violence restraining orders. Since the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen required gun laws to be consistent with the nation's historical tradition of firearm regulation, both kinds of laws have faced new constitutional challenges.
In this TalksOnLaw program, recorded in spring 2024 in two segments, Joel Cohen speaks with Jody Madeira, a professor at the Indiana University Maurer School of Law and co-author of a casebook on the Second Amendment, about how these laws work, the evidence on their effectiveness, and how they fare under Bruen.
How Red Flag Laws Work
ERPOs are civil orders, modeled on domestic violence protection orders, that temporarily remove firearms from a person in crisis who poses a danger to themselves or others. Madeira explains how state laws differ: who may petition (only law enforcement in states such as Indiana, but also family members, employers, coworkers, or teachers in states such as California, subject to conditions), the required showing of danger, whether emergency ex parte orders are available and for how long, how long orders last, and how firearms are returned. She describes due process safeguards, including prompt hearings, sworn petitions, and criminal penalties for false filings, as well as Maine's "yellow flag" law requiring a medical assessment, and the federal Bipartisan Safer Communities Act of 2022, which funds state crisis-intervention programs, including ERPO programs.
Do They Work, and Are They Constitutional?
Drawing on research from Connecticut, the first state to adopt such a law in 1999, and Indiana, Madeira explains that ERPOs are most clearly effective in preventing suicide and everyday gun violence, rather than mass shootings. She addresses common misconceptions, noting that in Broward County, Florida, most respondents agree to the orders. Madeira discusses how New York courts reached conflicting conclusions about the state's ERPO law after Bruen, and argues that these laws are better analyzed as questions of due process for emergency deprivations than under the Second Amendment's historical test.
Domestic Violence and the Second Amendment
In the second segment, Madeira explains the federal bans on firearm possession by people convicted of misdemeanor domestic violence (the 1996 Lautenberg Amendment) and by people subject to qualifying domestic violence restraining orders, 18 U.S.C. § 922(g)(8), and the 2022 closing of the so-called boyfriend loophole. She explains the gap left for people convicted of misdemeanor stalking, how states have gone further, the role of civil protective orders for victims who are reluctant to pursue criminal charges, and the data on domestic violence homicide. She previews United States v. Rahimi, the challenge to § 922(g)(8) then pending at the Supreme Court, and the historical analogues the government relied on, and predicts that the Court would uphold the law.
What to Know Now
In June 2024, in United States v. Rahimi, the Supreme Court upheld § 922(g)(8) by an 8-1 vote, holding that when a court has found that an individual poses a credible threat to the physical safety of another, that person may be temporarily disarmed consistent with the Second Amendment, and clarifying that Bruen requires laws to be consistent with the principles underlying the nation's regulatory tradition rather than to match a "historical twin." The Court has since applied Bruen in other cases, holding in United States v. Hemani (2026) that the federal ban on gun possession by unlawful drug users could not be applied to a person based solely on occasional marijuana use. Red flag laws have continued to spread and to draw opposition: Maine voters approved a full ERPO law in November 2025, while Montana and Texas enacted laws in 2025 restricting the use of red flag orders.
