Extreme Risk Protection Orders in the Post-Bruen Age: Weighing Evidence, Scholarship, and Rights for a Promising Gun Violence Prevention Tool

Authors

Andrew Willinger, Duke Law SchoolFollow
Shannon Frattaroli

Document Type

Article

Publication Date

2023

Abstract

Extreme Risk Protection Orders (ERPOs) are civil court orders that temporarily prohibit gun purchase and possession by people who are behaving dangerously and at risk of committing imminent violence. As of September 2023, ERPOs are available in 21 states and the District of Columbia. This Article presents an overview of ERPO laws, the rationale behind their development, and a review and analysis that considers emerging constitutional challenges to these laws (under both the Second Amendment and due process protections) in the post-Bruen era. This Article notes that the presence of multiple constitutional challenges in many ERPO-related cases has confused judicial analysis and argues that, especially in light of Bruen’s novel text, history, and tradition test, courts should be especially careful to clarify how cumulative-rights arguments are impacting their analysis. An examination of Second Amendment court decisions concerning another type of civil protection order, Domestic Violence Protection Orders, informs the approach used to further consider ERPO rights deprivation claims and the constitutionally relevant distinctions among different civil dispossession proceedings.

The Article further considers the state of ERPO law in the context of the evolving evidence documenting the uptake and impact of ERPOs on gun violence in the United States, including a review of scholarship that seeks to understand how ERPO statutes are being implemented and to determine whether the laws prevent interpersonal gun violence and suicide. Finally, this Article concludes with a commentary and set of recommendations to inform the practice and future scholarship of ERPO as a tool for preventing gun violence in the United States, in accord with constitutional protections in the post-Bruen age.

Citation

Andrew Willinger & Shannon Frattaroli, Extreme Risk Protection Orders in the Post-Bruen Age: Weighing Evidence, Scholarship, and Rights for a Promising Gun Violence Prevention Tool, 51 Fordham Urban Law Journal 157-219 (2023)