Due Process Before Disarmament

The Second Amendment is only 27 words long. It contains no exception for anonymous accusations, no allowance for confiscation without notice, and no provision allowing the government to suspend a constitutional right before the accused has had an opportunity to respond. The operative language is simple: the right of the people to keep and bear arms shall not be infringed.

In 2022, the voters of Iowa strengthened that principle by amending the state constitution to protect the right to keep and bear arms under strict scrutiny, the highest standard of review in American constitutional law. The amendment placed the right on the same legal footing as other fundamental liberties. It also placed a clear obligation on the legislature to treat the right accordingly.

House File 2718 was written with that obligation in mind.

The proposed law prohibits Iowa state and local law enforcement from enforcing so-called red flag orders against otherwise law-abiding citizens of this state. It also prevents Iowa agencies from accepting federal funds earmarked for the enforcement of those orders. Finally, it establishes a civil penalty for any agency whose officers knowingly enforce such an order against an Iowan.

The debate surrounding the bill has been energetic, but the final vote was simple. Every vote against the measure came from a Democrat. Not one Republican voted to permit enforcement of these orders in Iowa.

The disagreement is not primarily about firearms. It is about procedure — specifically, whether the government may suspend a constitutional right before the citizen accused has been notified or heard. In America, the government is supposed to prove you are dangerous before it takes away a constitutional right — not after.

Extreme Risk Protection Orders, more commonly called “red flag” laws, allow a judge to issue an order disarming an individual without the individual being present and often without the individual being aware the proceeding is taking place. In many states the order is issued solely on the basis of a written affidavit. The accused typically learns of the proceeding only when officers arrive to seize legally owned firearms.

Once the property has been taken, the burden shifts to the citizen to return to court and prove that he is not dangerous. Until that occurs, the constitutional right is suspended.

Supporters of red flag laws argue that the orders are intended as a preventative tool, designed to allow family members or law enforcement to intervene when an individual appears to pose a serious danger to themselves or others. They point out that the orders are typically temporary and that a hearing is scheduled after the initial order is issued. Those concerns are not trivial, and legislatures considering the issue must take them seriously.

The difficulty arises from the sequence of events. In a red flag proceeding the right is suspended first, and the hearing comes later.

This is not a theoretical concern. The consequences have already appeared in several states.

Gary Willis was 61 years old and lived in Glen Burnie, Maryland. He had no criminal record and no documented history of violence. On the morning of November 5, 2018 — roughly one month after Maryland’s red flag law took effect — police officers arrived at his home shortly after 5:00 p.m. to enforce an order obtained by a family member following an argument.

Willis had never seen the order and had not been present when it was issued. During the encounter that followed, officers shot and killed him.

When reporters later asked the local police chief what might have happened had officers not arrived before dawn to enforce the order, the chief responded that probably nothing would have happened at all.

Another example arose in New Jersey.

David Burg, a 67 year-old attorney and amateur musician, was driving to perform with his band during the Fourth of July weekend in 2024 when another motorist began tailgating and threatening him. Burg possessed a lawful carry permit and briefly displayed his firearm in order to deter the confrontation.

Several days later, New Jersey State Police appeared at his home with a temporary red flag order. The order had been granted based on a hearsay affidavit from an officer who had never spoken directly with Burg. His firearms were seized and his rights suspended. His hearing was later delayed beyond the statutory time limit.

Burg has since filed suit in federal court challenging the constitutionality of the law.

A third case involved Kyle Arena, a welder from Totowa, New Jersey. Arena had no prior criminal record. In September 2024, someone sent police an anonymous email containing several old social media posts. Officers did not contact Arena or request clarification. Instead, they applied for a red flag order and accompanying search warrant.

Police subsequently entered his home, seized his firearms, and filed criminal charges. Most of those charges were later dismissed.

Florida has seen similar incidents. In one case a man threatened with a baseball bat during a road rage confrontation drew his lawfully carried firearm to deter the attack. Police later issued a risk protection order after officers were unable to locate the bat at the scene. The man remained disarmed for more than a month while his attorney obtained surveillance footage confirming his account. All charges were eventually dropped.

None of these individuals had been convicted of a crime before their rights were suspended.

Family law attorneys in several states have also begun noting another pattern: the use of red flag petitions as tactical tools in divorce or custody disputes. Because the filing process is inexpensive and often confidential, the target may be disarmed before having any opportunity to respond.

Even the RAND Corporation has observed that expanding the class of individuals permitted to file such petitions may increase the risk that the procedure could be misused in domestic conflicts.

House File 2718 was written in response to these concerns.

The proposed statute does not prevent law enforcement from seizing firearms during a criminal investigation. It does not protect individuals already prohibited from possessing firearms under state or federal law. Existing mechanisms — criminal charges, protective orders, and involuntary commitment proceedings — remain available.

The bill addresses only the red flag process itself.

Iowa’s approach differs from legislation adopted elsewhere. Texas recently enacted a criminal penalty making enforcement of a red flag order a state jail felony. While serious in theory, that approach depends upon a local prosecutor’s willingness to bring charges against officers or judges operating within the same jurisdiction.

House File 2718 instead relies upon civil enforcement.

If a law enforcement agency knowingly enforces a red flag order against an Iowan, the agency faces a civil penalty of $50,000 for each occurrence. Sovereign immunity is waived, and attorney’s fees are recoverable. The citizen whose rights were violated may bring the action directly.

The case may be filed either in the county where the incident occurred or in Polk County. The proposed statute therefore allows a plaintiff to avoid local jurisdictions that may be hostile to the claim.

The design of the bill is deliberate. It places enforcement of the constitutional right directly in the hands of the citizen rather than relying upon prosecutorial discretion.

A civil penalty of that magnitude also creates an institutional incentive for agencies to train officers carefully and avoid involvement in these orders altogether.

The bill is currently pending in the Iowa Senate.

It does not resolve the national debate over firearms. It does, however, resolve a narrower question within the borders of this state: whether a constitutional right may be suspended without notice or hearing.

The Iowa House concluded that it may not.

I believe that conclusion is consistent both with the Second Amendment and with the broader principles of due process that govern all constitutional rights.

Iowa has drawn a line. Citizens of this state now have the means to enforce it themselves.

READ MORE:

Should the People With All the Power Have All the Guns?

Anarcho-Tyranny Is Official White House Policy

Gavin Newsom Betrays Himself in Latest Attack on Florida Gun Law

Charles Thomson, an attorney, represents House District 58 in northeast Iowa.