It has always been possible to take a dangerous person’s guns away. All 50 states and the federal government have involuntary commitment laws that go by various names: the Baker Act in Florida, for example, or the 5150 code in California. They all require a mental health expert to testify before a judge, but hearings can occur quickly in urgent cases. If those facing a hearing can’t afford a lawyer, the judge provides them with one. Judges have a lot of flexibility when ruling. For instance, if the person on trial does not agree to voluntary psychiatric treatment, they may be committed involuntarily or have their guns confiscated.
But red flag laws remove all these due process protections. Based only on a written complaint, which could come from a relative, friend, neighbor, or police officer, a judge decides whether to take away a person’s guns. There is no ability to challenge claims or to offer testimony from a mental health care expert. Gun control advocates argue that the person should not even know that the judge may be deciding to take his or her guns. When a hearing finally takes place up to a month later, if the person in question cannot afford an attorney, they will not be provided with one.
When faced with the costs for a hearing, which may be up to $10,000, few people find that fighting red flag laws to keep their guns makes sense. Few defendants obtain legal representation, but the courts still overturn a third of the initial orders. The actual error rate is undoubtedly much higher, because many of those wrongly prosecuted don’t have a lawyer.