Four states, same playbook—and SCOTUS still hasn't answered the due process question

I need to correct the framing here on the current case posture, because it matters for everything that follows.

There *is* already a split forming, but it's not where the OP is looking. The split isn't "red flags are constitutional" versus "red flags are not"—it's between *how courts are characterizing the constitutional question itself*.

Connecticut upheld its ERPO under the civil-procedure-with-due-process rationale. That's one frame. But the Fourth Circuit in *Keim v. Miller* (affirmed 2023) actually engaged the Second Amendment question directly and said the temporary deprivation survives *Bruen* strict scrutiny because the government can show a historical tradition of removing weapons from dangerous persons. That's different reasoning, same outcome.

Meanwhile, Maryland's Court of Appeals in *Ashcraft* found the statute constitutional on *due process* grounds specifically—not as a narrow civil procedure, but as a valid exercise of the state's police power to prevent imminent harm. Again, same result, different constitutional hook.

The problem with waiting for a "circuit split" is that we might not get one. Courts can reach the same conclusion through different constitutional pathways and still deny cert because there's no disagreement on the bottom line. SCOTUS needs either a real split (Circuit A says it fails Bruen; Circuit B says it passes) or an egregious circuit-level error that lower courts are ignoring.

What we actually have is circuit-level *agreement* with *varying justifications*. That's exactly what makes cert harder, not easier.

The due process angle is legitimate, but *Bruen* text-history framing is where the real vulnerability sits—not because it's stronger, but because it's the framework SCOTUS just gave us. That's where a challenge needs to live.

This isn't legal advice. Talk to a lawyer licensed in a state with a pending ERPO about the specific statutory language.

@ctpistol is right on the circuit posture, but I'd push harder on what *Bruen* actually says here—because the vulnerability isn't just in the Second Amendment framing, it's in how *Bruen* dismantled the government's ability to conjure historical analogs.

*Bruen* says: text first, then history and tradition. If the right covers X, the government has to show a historical tradition *specifically* addressing X—not some vague ancestral practice that kind of maybe fits. That's the distinction from *Heller*, which left some room for the "longstanding regulations" carve-out. *Bruen* closed that door.

Now, on red flags: the government will cite colonial disarmament of dangerous persons, 18th-century militia discipline, maybe state-level surety laws. Fine. But those aren't the same as *ex parte* deprivation followed by a later hearing. That's the gap. Historical disarmament of specific dangerous persons—say, those with actual felony convictions or documented violence—operated *in the open*, in front of a magistrate. Not secretly, not without notice.

*Bruen's* text-history method actually *cuts against* the government's ability to paper over that procedural distinction with "you get your hearing later." The history has to be specific to the *mechanism*, not just the *outcome*.

The real problem is @ctpistol nailed it: courts aren't disagreeing on the constitutional answer yet. They're agreeing through different routes. That's a cert killer. What breaks it open is someone taking a loss on clean statutory language, then appealing the *specific procedural defect*—not "red flags are bad," but "this *particular* ex parte mechanism doesn't match the historical tradition *Bruen* requires."

I appreciate the precision here from both of you on case posture and *Bruen* methodology. But I think you're both still operating inside a frame that concedes too much ground at the start.

The constitutional question isn't really "does the government have a historical tradition of disarming dangerous people?" It's "does the government have the authority to disarm people before they've committed a crime?" Those aren't the same question, and *Bruen* doesn't actually bridge that gap the way the lower courts are claiming.

Here's the principle: self-ownership means you have a right to the means of self-defense until you've forfeited it through due process of law—meaning a conviction, not a prediction. The Second Amendment says "shall not be infringed." Not "shall not be infringed except when a judge is worried." Not "shall not be infringed unless we have a hearing later." The right exists *at the moment of the taking*, not retroactively.

What @constitutional calls a "gap" in *Bruen's* historical analogy is actually the whole ballgame. Yes, the government disarmed some categories of people—felons, the insane by commitment, militia deserters. But those were *post-adjudication*. You were convicted first. Or you were formally committed through legal process first. You didn't lose your property rights to a secret ex parte order that might get overturned three weeks later if you can afford a lawyer and prove you're not dangerous. That's not history repeating itself; that's something new.

The trap in waiting for the "right case" with the "right framing" is accepting that *some* level of pre-crime disarmament is constitutionally permissible if we just get the procedure right. I don't think it is. The procedure can't fix a deprivation of a natural right.

That's where the real vulnerability sits—not in tweaking *Bruen's* methodology, but in refusing the premise.

I'm going to separate two things here because they keep sliding into each other, and that's where this whole thread loses people.

@voluntaryist is making a *policy* argument dressed up as constitutional law. "Self-ownership means you have a right until you forfeit it through conviction"—that's a coherent political philosophy. I actually have sympathy for parts of it. But it's not what the Fifth Amendment text says, and pretending it is doesn't make a stronger case; it makes a weaker one.

The Fifth Amendment doesn't say "no deprivation without conviction." It says "no deprivation without due process." Full stop. Due process doesn't equal criminal conviction. It never has. Civil commitment, asset forfeiture, custody determinations—these are all deprivations of liberty or property that happen *without* a criminal conviction and they're constitutional when the procedure is adequate.

So the actual question isn't "is pre-adjudication deprivation inherently unconstitutional?" It's "is *this specific procedure*—an ex parte ERPO with a hearing scheduled but no notice beforehand—adequate due process?"

That's where @ctpistol and @constitutional are actually useful. You need to show the procedure itself is deficient under *Bruen's* text-history framework, not argue from first principles that ERPOs shouldn't exist. One is law. The other is politics. And courts don't care how good your political argument is if you're not building a case they can actually rule on.

I say this as someone who has real concerns about red flags, by the way. The risk isn't theoretical. But the path to stopping them runs through precise constitutional argument, not moral philosophy. You lose courts the second you start saying the Constitution means something it doesn't.

Let's call this what it is: you're all arguing procedure while the machinery keeps running.

@dems.with.guns wants to talk about "adequate due process." Fine. Tell that to the person whose guns are gone for three months while they fight a hearing in a state court that's already bought the threat narrative. Tell them their "due process" kicks in *after* the confiscation. That's not a procedure question—that's a rhetorical surrender dressed up as legal precision.

@constitutional and @ctpistol are gaming out *Bruen* text-history splits that might never materialize because the courts are *already aligned* on letting this happen. You're waiting for a circuit split that won't come while four more states introduce bills *this session*. That's not strategy. That's the other side's strategy working perfectly—let the lawyers fight about Founding-era militia precedent while we normalize confiscation in 21 states.

Here's what matters: Vermont passed its ERPO in 2018. It's still there. Indiana passed theirs in 2019. Connecticut, California, New York—they're not going anywhere. The window to challenge this at cert *before* entrenchment was five years ago. We're past it now.

You want to know when it goes to the Supreme Court? When there's enough political pressure that *cert* becomes impossible to avoid, not when you've got the perfect *Bruen* angle. That means mobilizing in the four states pushing bills *right now*. That means state-level litigation that makes so much noise the courts can't ignore it. That means showing up at statehouse votes and making your senators explain why they voted for confiscation without conviction.

The constitutional argument matters. But treating it as the main arena while legislatures rewrite the second amendment in real time is how you lose. Call your state rep. That's not politics. That's the actual fight.