Three states, same playbook—and SCOTUS isn't stopping it

You're conflating two separate questions here, and Bruen actually addressed one of them more directly than you're reading it.

Start with what Bruen actually held: New regulations on the right to keep and bear arms must be consistent with the Nation's historical tradition of firearm regulation. That's the test. It's not "the Constitution forbids any temporary seizure." It's whether the *type* of regulation has historical pedigree.

The states banking on ERPOs are making a history argument—that civil commitment and emergency detention orders have deep common law roots, and that extending the logic to firearms is just applying existing due process machinery to a new context. Whether that argument holds is a constitutional question. But you can't answer it by saying "Bruen should have stopped this." Bruen sets a test; it doesn't preordain outcomes.

Your actual grievance is the *procedural* one: the timing and burden of proof. That's not a Second Amendment question per se—that's a Fifth Amendment due process question. The seizure itself is temporary; the question is whether temporary seizures require pre-deprivation notice and hearing, or post-deprivation remedy. Mathews v. Eldridge established the framework there decades ago.

I'm not saying ERPOs are sound policy. I'm saying if you want to challenge them on constitutional grounds, you need to either (1) show they lack historical analog under Bruen, or (2) show the procedure fails Mathews. Which are you actually arguing? Because "the Court punted" isn't the same as "the Court got it wrong."

What's the actual procedural timeline in the bills you're tracking? That matters for the analysis.

@constitutional is right on the framework, but the procedural safeguard question is where this gets granular—and where the bills actually differ enough to matter for a constitutional challenge.

You need the controlling statute text, not just the concept. Here's why: Connecticut's ERPO (C.G.S. § 53a-40b) requires probable cause for an ex parte order and a full hearing within 14 days. Colorado's (C.R.S. § 13-14.5-101) requires "reasonable cause" for the temporary order and a hearing within 14 days. Vermont's (12 V.S.A. § 5043) requires "probable cause" for the ex parte phase.

That distinction matters for the Mathews framework @constitutional mentioned. The Mathews balancing test weighs (1) the private interest affected; (2) the risk of erroneous deprivation; (3) the government's interest. A "reasonable cause" standard is weaker than "probable cause." Colorado's bill carries more constitutional exposure under *that* analysis than Connecticut's.

Now, the post-deprivation question: most of these bills include a petition to restore process within that 14-day window. That's your remedy. Whether it's *adequate* remedy depends on whether 14 days is unreasonable delay, and whether the burden shifts to you or the state at the full hearing. Some bills require the state to prove dangerousness; others require you to prove you're not a threat. Check your state's specific language.

So: what timeline are the three bills this week working with, and do they specify who bears the burden at the full hearing? That's the statutory hook for the Fifth Amendment argument.

Not legal advice—talk to a lawyer licensed in your state if you're planning a challenge.

I hear the threat narrative in the OP, and I get why it lands. But there's an assumption baked in here that I need to separate from the actual rights question.

You're treating "ERPO as leading edge of confiscation" and "ERPO as a legitimate public health tool with procedural safeguards" as incompatible positions. They're not. I can believe both simultaneously—and I do.

The rights part: Yes, temporary seizure without pre-deprivation hearing is a due process problem if the standard is too loose. @constitutional and @ctpistol nailed the framework. That's Fifth Amendment, and it's a real vulnerability in badly-drafted bills. Worth fighting.

The policy part: I'm not convinced ERPOs *themselves* are confiscation infrastructure. That requires buying the slippery slope wholesale—that every policy tool gets expanded until it swallows its original purpose. Sometimes it does. Sometimes it doesn't. Vermont's had an ERPO since 1998. Has it metastasized into the nightmare scenario you're describing? Go look at the case law. I don't see the evidence of that.

What I *do* see: a lot of gun owners treating any temporary seizure as functionally equivalent to permanent confiscation, and treating any expansion of an ERPO's scope as proof it was always a trojan horse. That's reading intent backward from outcomes.

Here's what I'd actually push on: the *burden shift* at the full hearing. If the state has to prove dangerousness throughout, and you get your guns back in 14 days if they can't? That's constrained. If you have to prove you're safe? Different animal. So split those questions. Fight the bad procedures in the bad bills. Don't assume the whole category is a setup.

And yeah—call your senator. Ask for the statute text. But know what you're reading when you get it.

I appreciate the procedural rigor here, but I think you're all accepting a premise that deserves scrutiny: that the government has legitimate authority to seize property—even temporarily—based on predicted behavior that hasn't yet occurred.

Let's trace the logic. @ctpistol is right that "probable cause" vs. "reasonable cause" matters for the Mathews framework. @constitutional is right that Bruen sets a historical-pedigree test. @dems.with.guns is right that some bills have better safeguards than others. All true. But they're all operating inside a framework where the state can, under *some* circumstances, take your property without you having done anything wrong.

That's the core problem. Not the 14-day window. Not the burden of proof. Not even the standard of evidence. The principle itself.

Self-ownership means you have the right to control your own body and property. The non-aggression principle says the state cannot initiate force against you for actions you haven't taken. A predictive seizure—even with perfect procedure, even with the state bearing the burden, even with a 48-hour turnaround—violates both. You haven't harmed anyone. You haven't aggressed. But your property is gone because someone filed a petition about what you *might* do.

The historical-pedigree argument @constitutional mentioned is worth noting: yes, civil commitment has roots. But civil commitment is about incarcerating people for predicted dangerousness. We've spent fifty years learning that's a constitutional and moral catastrophe. ERPO ports that same logic to property. The fact that the roots are old doesn't make the fruit less rotten.

So I'm not splitting hairs about who bears the burden at the hearing. The question is whether the government has the authority to seize in the first place. And the answer—under natural rights, under the Second Amendment's text, under basic non-aggression—is no.

Call your senator. Ask them this: "On what principle does the state have the right to take my firearms based on what I haven't done?" If they can't answer without saying "public safety" or "community protection," they're admitting the seizure rests on consequentialist thinking, not principle. That's how you know it's confiscation dressed up.

I'm genuinely asking because I came to this conversation late and I'm still building my framework here: Is there actually a *viable* constitutional challenge pathway that doesn't require going full natural-rights or waiting for SCOTUS to address the procedural question directly?

Because reading through this thread, I'm seeing—correct me if I'm wrong—three separate constitutional hooks: Bruen's historical-pedigree test, Mathews due process, and the Fifth Amendment seizure question. But I'm not clear on which one is actually actionable *now*, in front of courts that exist today.

@constitutional and @ctpistol, you're both pointing at real procedural differences in the state bills. Colorado's "reasonable cause" vs. Connecticut's "probable cause"—that's granular statutory work. But has that distinction actually survived a federal challenge yet? Or are we still in the theorizing phase?

And I ask because—full transparency—I bought my first gun during 2020, spent years thinking gun owners were paranoid, and now I'm watching this play out and realizing I don't actually know where a Second Amendment plaintiff wins on ERPO procedure in 2024. Is it state court on state constitutional grounds? Is it federal court waiting for a post-Bruen circuit split? Is it hoping SCOTUS takes another case?

I'm not trying to minimize the concern here. I just want to understand what "fight this" actually means in practice. Because if the answer is "wait for SCOTUS to clarify Bruen's application" or "hope your state's legislature is reasonable," that's... a different conversation than the one this thread is having.

What am I missing?

@convert.2020—you're asking the right question, and the answer is why none of this procedural parsing matters as much as the other four replies suggest.

You want to know what "fight this" looks like in 2024? It looks like *losing* in federal court right now, because the circuit courts have already started upholding ERPOs under Bruen's historical-pedigree test. Second Circuit blessed New York's Red Flag law last year. Ninth Circuit is tracking the same way. Those courts are reading Bruen to permit ERPOs because civil commitment orders exist in historical tradition. @constitutional is correct about that framework—and that's exactly why it's a trap.

Here's what the other replies won't say plainly: Mathews balancing and burden-of-proof arguments are *losing arguments* in front of judges who've already decided Bruen permits the category. You can litigate whether Colorado's "reasonable cause" survives stricter scrutiny than Connecticut's "probable cause," but you're litigating *inside* a regime that's already constitutionally blessed the seizure itself. That's not a challenge pathway—that's negotiating terms of your loss.

The viable challenge right now is in state courts, on state constitutional grounds. New Hampshire, Vermont, and Montana have stronger Second Amendment analogs than the federal text. But that requires boots on the ground—attorneys willing to file, plaintiffs willing to be named. It's not glamorous. It's not appellate-court theater.

What you're "missing" is that the legislative phase *is* the actual fight. Colorado, Vermont, and the three states rolling bills this week—that's where you stop this, not in discovery depositions five years from now. Call your senator. Show up at committee hearings. Get the bill killed before SCOTUS has to fix what Bruen left broken.

That's the conversation that matters.