Do red flag laws violate the 5th and 6th Amendments? (US)

This a spin-off thread from here.

Debate Prompt

Do red flag laws violate the 5th and/or 6th amendments to the U.S. Constitution?


What is a red flag law? The Washington Post has a helpful introduction to red flag laws,

Red-flag laws allow police, family members or even doctors to petition a court to take away someone’s firearms for up to a year if they feel that person is a threat to themselves or others. Nineteen states and the District of Columbia — including two Republican-controlled states, Florida and Indiana — have some form of this law on the books.

For those who need to see specifics, my state of Florida has had such a red-flag law in effect since the Parkland massacre in 2018. CNN has a writeup on the law, or you can read the text for yourself at Fla. Stat. 790.401 (2021). There are other red flag laws on the books of various states you can reference. There is also a federal bill which has been characterized as a ‘red flag’ law, H.R.7910 (117th), but so far as I can tell does not contain any provision allowing for forfeiture of a firearm except after conviction for a crime.

Here are the 5th and 6th amendments for reference,

Amendment V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.


cc: @pkbites, @Thing.Fish, @Babale, @Kimstu, @Johnny_L.A

While being part of a bunch of opinionated nonspecialists arguing about their semi-informed opinions in complete disregard of the views of knowledgeable professionals is one of the things I love best about the SDMB, I do feel that before embarking on this conversation we ought to take at least a perfunctory look at opinions from people who are acknowledged experts on issues of constitutional rights and civil liberties defense.

Here, for starters, is an overview by the American Civil Liberties Union as of 2018. I have bolded the most directly relevant part of the quoted excerpt.

Just to let you know that I am going to quote this forever.

Yes, the ACLU demands "due process’ and some red flag has have it, other don’t. So the answer to the OP is- some do, and some don’t.

In general the theory behind them is fine, but the devil is in the details.

This is an interesting study-

When you say some don’t have due process, do you mean some don’t have a hearing before the guns are taken, or that they don’t allow for the gun owner to have a hearing at all?

If the objection is simply that defendants get a post-seizure hearing, I think that is fully constitution compliant.

The 4th A states that persons are to be secure against unreasonable seizures, and that warrants may be issued on probable cause and oath, as long as they describe the place to be searched and the items to be seized. Due process comes after the seizure, not before.

I think the ACLU’s objection is when there is no pre-seizure hearing. Can’t take the guns away on a whim - there has to be a court order based on evidence.

On the other hand, I think the precedent is clear that a hearing after the law-enforcement action is perfectly acceptable: It’s normal procedure in our criminal justice system, for instance, to first lock a person up, and then put them on trial. There are limits to this, hence the right to a speedy trial, but so long as the hearing comes reasonably soon after, it’s deemed to be fine.

I don’t disagree, but will suggest that the type of evidence and court involvement required to remove a human from their home and place them in a metal cage should be considered the maximum amount needed to temporarily hold a person’s belongings.

I was thinking on the “permanent” level. I definitely see your point and agree - the cops can grab you and put you in a metal cage temporarily - they have to release you within x amount of time or charge you with a crime. Similarly, I don’t have a problem with them taking guns away temporarily without an order - if you’re doing something stupid (or might do something stupid). All of that, of course, under the assumption that they are returned (or reimbursed for) in a timely manner.

In Illinois, to posses a gun (handgun or longarm), you need a FOID card (Firearm Owner IDentification). If there is a court order that you did something stupid or are a danger to others, you lose your FOID card. At that time, you are supposed to surrender your arms to the police, or the police are supposed to go retrieve them. Those failures are what lead to the mass shooting at a manufacturing plant a few years ago.

No, red flag laws don’t violate the 5th and 6th Amendments.

Redington v. State

Hope v. State

Davis v. Gilchrist County

I apologize that I have no time to get into details of these cases, or even Shepardize them at this time. I just wanted to give a jumping off point for the discussion. Hopefully I can get back to this later.

IIRC, that is true.

Those are state court rulings. Have any federal courts ruled on the constitutionality of said laws?

Do red flag laws violate the 5th Amendment’s taking clause?

pkbites originally asserted that red flag laws “routinely violate” the 5th and 6th Amendments. Johnny_L.A. more specifically suggested that a red flag law may run afoul of the provision in the 5th Amendment which states “nor shall private property be taken for public use, without just compensation”. This provision is usually called the takings clause.

The argument relies on three premises: first, that the 5th Amendment’s taking clause applies to the states; second, that a firearm qualifies as private property for the purposes of the takings clause; third, that a court’s decision to take away someone’s firearms under a red flag law constitutes being “taken for public use” with respect to the takings clause.

Does the 5th Amendment’s taking clause apply to the states?

The answer is technically no, but effectively yes. Those who don’t care about the distinction (which is mostly inconsequential, in my opinion) may wish to skip to the next heading.

The 5th Amendment itself, passed in 1791, applies only to the federal government. Justice Marshall and a unanimous Court held that the 5th Amendment, and the takings clause specifically, is “not applicable to the legislation of the states.” Barron ex rel. Tiernan v. the Mayor and City Council of Baltimore, 32 U.S. 243 (1833). This holding was a major factor in the passage of the 14th Amendment in 1868, which among other things contains a nearly verbatim copy of the 5th Amendment’s due process clause.

XIV. […] No State shall […] nor shall any State deprive any person of […] property, without due process of law.

In 1896, the Supreme Court held that the 14th Amendment’s due process clause - not the 5th Amendment’s takings clause - requires states to provide compensation when taking private property for public use. Chicago, Burlington & Quincy Railroad Company v Chicago, 166 U.S. 226, 236 (1895). In the words of Justice Harlan,

"Due protection of the rights of property has been regarded as a vital principle of republican institutions. ‘Next in degree to the right of personal liberty,’ Mr. Broom in his work on Constitutional Law says, ‘is that of enjoying private property without undue interference or molestation.’ (p. 228.) The requirement that the property shall not be taken for public use without just compensation is but ‘an affirmance of a great doctrine established by the common law for the protection of private property. It is founded in natural equity, and is laid down by jurists as a principle of universal law. Indeed, in a free government almost all other rights would become worthless if the government possessed an uncontrollable power over the private fortune of every citizen.’ 2 Story Const. § 1790; 1 Bl. Com. 138, 139; Cooley’s Const. Lim. *559; People v. Platt, 17 Johns. 195, 215; Bradshaw v. Rodgers, 20 Johns. 103, 106 ; Petition of Mt. Washington Road Co., 35 N. H. 134, 142; Parham v. The Justices &c., 9 Georgia, 341, 348; Martin et al., Ew parte, 13 Arkansas, 198, 206 et seq.; Johnston v. Rankin, 70 N. C. 550, 555.

[…] “The [state] legislature may prescribe a form of procedure to be observed in the taking of private property for public use, but it is not due process of law if provision be not made for compensation. Notice to the owner to appear in some judicial tribunal and show cause why his property shall not be taken for public use without compensation would be a mockery of justice. Due process of law as applied to judicial proceedings instituted for the taking of private property for public use means, therefore, such process as recognizes the right of the owner to be compensated if his property be wrested from him and transferred to the public. The mere form of the proceeding instituted against the owner, even if he be admitted to defend, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation.”

So while the 5th Amendment and its takings clause is inapplicable as applied to the states, we have an identical restriction through the 14th Amendment’s due process clause. It makes sense to speak of the 5th Amendment’s takings clause as “incorporated” against the states, and to speak of a violation of the 5th Amendment’s takings clause although the relevant provision is, technically speaking, the 14th Amendment’s due process clause.

Does a firearm qualify as private property for the purposes of the takings clause?

Yes. The takings clause and the power of eminent domain (international equivalent: compulsory acquisition) is usually associated with the taking of real property, i.e. land. Thing.Fish in his response seemed to imply that the “private property” covered by the takings clause only extends to real property. This was shot down in-thread but I do want to add an authority.

In 2015 the Supreme Court held that the government’s Fifth Amendment duty to pay just compensation applies to personal property (in the case, raisins) as well as real property. It is even suggested that the takings clause was probably a response to the practice of impressing horses, carriages, and other military supplies during the revolutionary war. Horne v. Department of Agriculture, 576 U.S. 350, 357 et seq (2015). (For those interested, the majority for this holding consisted of Justices Roberts, Scalia, Kennedy, Thomas, Alito, Ginsberg, Breyer, and Kagan; only Justice Sotomayor disagreed).

Does a court’s decision to take away someone’s firearms under a red flag law constitute count as being “taken for public use”, with respect to the takings clause?

I’m not sure about this one and hope others can provide a more definitive answer.

Traditionally takings involve transfer of title from the individual to the government. Red flag laws are distinguished by their temporary nature. In Florida the judge may order the respondent to surrender all licenses, firearms, and ammunition for a period of up to twelve months. I am not sure if this counts as a transfer of title because, notably, the individual must complete another background check to have the property returned.

The Supreme Court has long held that the “property” protected by the 5th and 14th Amendments is more broad than formal title. The common metaphor is that “property” is a “bundle of rights”. The Court has ordered compensation for state regulations or “regulatory takings” that destroy “property” such as patent rights, easement rights, and materialmen’s liens. James v. Campbell, 104 U.S. 356 (1882); United States v. Welch, 217 U.S. 333 (1910); Armstrong v. United States, 364 U.S. 40 (1960).

The federal government banned the sale of products made of eagle parts in the '70s. A seller of eagle feather trinkets sued on the theory that the regulation deprived him of “property” because he no longer could sell his inventory, and on lost value. The Court rejected the argument, noting that he still possessed the feathers and could charge people to look at them. Andrus v. Allard, 444 U.S. 51 (1979). Contrast with firearms and ammunition that has been surrendered under a red flag law, which are for the duration of forfeiture neither in the owner’s possession nor available for the owner to display for commercial purposes.

The case of Mugler v. Kansas, 123 U.S. 623, 668 et seq. (1887), comes to mind as possibly controlling, but on further examination it does not seem to resolve the question to my satisfaction. Kansas had prohibited the manufacture and sale of alcohol, and owners of breweries who disregarded and were thus convicted under the relevant laws. They contended, inter alia, that the prohibition destroyed the use of the brewers’ property (a vested property interest) without compensation. Therefore, the law was an unconstitutional “taking” of “property” and so the convictions must be overturned.

The Court rejected the brewers’ arguments. They distinguish between exercise of the eminent domain power (taking of property “for public use”), and of police powers (exerted “for the protection of the health, morals, and safety of the people”):

As already stated, the present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one, for certain forbidden purposes,. is prejudicial to the public interests.

Red flag laws are surely intended to protect the health and safety of the community. On the other hand red flag laws are distinguished because the owner is not prohibited from using his property for specified purposes, he is actually ordered to surrender the property for a period of time. His control and use of the property for lawful purposes is disturbed and his right to dispose of the property is abridged, albeit not necessarily permenantly.

Another point of distinction between these cases and red flag laws is the official who causes the “taking”. In all of the cases I can find, it is a political branch. In red flag cases, it is a judge.

This raises a complicated philosophical question. Do state judges establish and abridge property rights - do they make common law - or do they merely find whether a property right exists at common law? If a judge issues a protective order for me to surrender all firearms &c, did the judge take away my right to use my property for lawful purposes, or did the judge find that in my present state I have no right to use this property? If it is the former, I would call it a taking. If it is the latter, I would not.


  1. Would that make a difference to you at all.
  2. Can I bill you for the time necessary to research that?

That was not my intention. I was talking about banning that results in confiscation.

I just wanted to recognize this detailed, well-researched, well-organized, and clearly-written post. Bravo; we need more posts like this.

Yes, it does make a difference. A state court ruling in CT only applies in CT.

Your blanket statement “No, red flag laws don’t violate the 5th and 6th Amendments.” is incomplete, at best.

I think the ship has long since sailed on “experts” of what the constitution does and does not tell us. The supreme court over the past few decades have shown they can rationalize anything.

We know that no right is without limitation. The question is where those lines are drawn that limit our “freedoms”.

There is no “one” right answer we will all agree on so not sure even “specialists” have a claim to authority on this.

Short answer: no.

The fifth and sixth amendments protect the rights of people against government action without due process. The article you linked to says the red flag laws incorporate due process.

And many pre-seizure hearings happen sans subject. They are unaware of such hearing, they have no opportunity to confront their accuser and impeach their credibility, no right to have counsel present, no chance to testify on their own behalf. The CLEO rep of wherever they live just shows up and seizes their guns. How on Earth is that constitutional, how is that not prime for abuse?

Then some of you naively believe that just because some guns are removed they all have been removed. And spare me the fantasy about registration because that’s not happening anytime soon. Let’s keep to the laws and procedures currently in place. There is no way of knowing if you confiscated all of someones firearms in most of the United States.

And some of you naively believe that removing guns removes the threat. If someones actions and/or language has made them appear to be a threat to themselves or others why are you focusing on one particular tool they may use and not on the person themselves?

“Thank gawd we took all his guns away. When he went off his nut he was forced to use a pick up truck to drive through a crowd and kill 17 people and injure 20.”