“Red Flag” Laws: How Law Enforcement’s Controversial New Tool to Reduce Mass Shootings Fits Within Current Second Amendment Jurisprudence

Abstract

In the face of increased gun violence and mass shootings in the United States, so-called “red flag” laws have become a new and popular tool for protecting public safety. The laws are gaining momentum in state houses around the country because they provide law enforcement with a means to expeditiously remove firearms from potentially dangerous individuals—regardless of the individual’s criminal record and mental health history. Thus far, the laws are a magnet for constitutional challenges—including claims that the laws violate the Second Amendment to the U.S. Constitution. This Note provides a historical and legal background of red flag laws in four states—Connecticut, Indiana, California, and Florida—and briefly examines the surrounding case law in those states. It then explains the analytical framework that federal circuit courts use to analyze Second Amendment challenges to regulations restricting firearm possession. It proceeds to discuss how federal courts apply that legal framework to laws that—like red flag laws—prohibit or restrict the possession of firearms by individuals deemed “dangerous” by society. It concludes by arguing that courts considering a Second Amendment challenge to a red flag law should find that the law regulates conduct and individuals protected by the Second Amendment, and then evaluate the law under a test of intermediate scrutiny.