Which 2A Groups Are Actually Beating ERPO in Court?

Question

Good question, but the honest answer is: we're still waiting for the decisive win. And that's the problem.

Since *Bruen*, we've seen some favorable rulings at the district and circuit level—FPC, SAF, and NAGR have all landed preliminary injunctions in various states. But here's **this is why** you can't just celebrate and move on: none of these have resulted in a final judgment that kills ERPO nationwide. Maryland, Connecticut, New York—they keep appealing. The cases grind on.

The real issue is that courts are still skating around the core question: whether ERPOs are constitutional *per se*, or whether they just need better due process procedures. If judges keep ruling "the process wasn't adequate, but ERPO itself is fine," then legislatures just tighten the procedures—add a hearing, add a therapist requirement—and **the law stays on the books**.

**Don't be fooled** by preliminary victories. They're holding actions. What we need is a Supreme Court petition that treats this like what it is: a Fourth Amendment *and* Fifth Amendment problem, not a tweaking-the-notice-period problem. FPC is pushing hard here, but getting SCOTUS to touch ERPO is a long game because the Court has discretion.

Meanwhile, states are *adding* red flag laws, not losing them. As of last year, about 21 states had some version. That's the trend we should be watching.

Call your senator and tell them you oppose federal ERPO funding. That's where the real battle is right now.

Cal Briggs · Accepted Answer

I appreciate the case work here, but I want to step back and name what's happening at the structural level.

We're watching three organizations fight over which legal *theory* will win inside a courtroom, while the premise itself—that government has standing to petition a court to seize your property and restrict your liberty based on predictive judgment—remains unchallenged. That's the problem that institutional litigation cannot solve.

FPC, SAF, GOA: they're all arguing within the frame that *if* ERPOs exist, they must meet due process, or *Bruen* historical standards, or procedural adequacy. But the non-aggression principle doesn't care about procedural fixes. Self-ownership means you own your person and your choices, full stop. No magistrate—no matter how well-trained, how thorough the notice, how rigorous the historical pedigree—has the moral authority to seize your freedom based on what you *might* do.

The reason these cases drag on is that courts can always patch the procedure. And patch it again. Because the underlying claim—government power to preventively incapacitate—is never in the dock.

Meanwhile, the political pressure strategy that @ctpistol flagged (defund federal ERPO incentives) actually *works* because it changes the cost-benefit calculus for legislators in a way that appellate wins don't. A judge's favorable ruling on procedure doesn't stop the next state from passing a tighter version. But defunding the grants? That hits the material incentive.

If we're serious about this, we stop waiting for courts to perfect the cage and start making ERPO politically expensive to implement. That's not cynicism about law. It's clarity about power.

David Walsh · Answer

You're right that we haven't gotten a final kill on ERPO, but I'd sharpen the case picture here because the citation record matters for this discussion.

FPC's wins are *Bantum v. Unemployed Workers* (9th Cir., preliminary injunction on WA's law, 2023) and the ongoing *Sorenson v. Besser* in Michigan. SAF's holding better cards in *Maryland Shall Issue v. Hogan*—they got the 4th Circuit to vacate the summary judgment and remand, which isn't just a preliminary injunction; that's the merits moving the right direction. That case is still live, but the appellate posture there is stronger than "waiting for appeals."

That said, you've identified the real structural problem: the courts are using a due-process-fix framework instead of treating ERPO as a categorical Second Amendment question. You see this in the 4th Circuit's reasoning—they didn't say ERPOs are unconstitutional; they said the *ex parte* seizure without adequate notice violates procedure.

The SCOTUS path is bottlenecked not just by certiorari discretion, but by the fact that SAF and FPC are still building a record. SCOTUS won't touch this until at least one appellate circuit says ERPOs fail *Bruen* categorically, and we're not there yet.

Your point on federal ERPO funding is operative. That's the legislative lever that actually moves without waiting for judicial gatekeeping.

(Not legal advice; this is public case law only. Talk to a lawyer about specific ERPO exposure in your state.)

James Whitfield · Answer

@ctpistol's case citations are solid, but we're missing GOA's work here, and that gap matters for the *Bruen* framework.

*Maryland Shall Issue* is correctly positioned as stronger than preliminary relief, but the 4th Circuit's due-process reasoning is exactly the problem the OP flagged. They said the *ex parte* seizure needs better notice—they *distinguished* the merits question. That's procedural patching, not categorical Second Amendment analysis.

What's missing from this thread: GOA v. Everytown (9th Cir., 2024). GOA actually pushed a *Bruen* categorical argument—that ERPOs have no historical analogue in the Founding era or immediate aftermath. That's the *text, history, and tradition* move. They didn't win on the merits yet, but the opinion gave real traction to the argument that ERPOs aren't "longstanding regulations" and therefore fall outside permissible scope under the Second Amendment *per se*.

The distinction matters: FPC and SAF are winning on procedure and facial challenges. GOA is building the *Bruen* categorical record—arguing ERPOs are unconstitutional *as a class*, not just "in need of better process." That's the pathway to SCOTUS, not the 4th Circuit's remand strategy.

Until a circuit court says "ERPOs fail *Bruen* categorically," you're right that SCOTUS won't grant cert. But GOA's framing gets us closer to that holding than a due-process fix ever will.

Victor Malone · Answer

@ctpistol and @constitutional are doing the case law heavy lifting here, and I'm not going to relitigate *Maryland Shall Issue* versus *Bruen* categorical versus GOA's historical framing—that's all real work. But I want to be blunt: none of it matters if we don't change the political math.

@voluntaryist's right about one thing—courts can always patch procedure. But that's not an argument to abandon litigation; it's an argument to stop *pretending* litigation alone wins this fight. FPC, SAF, GOA winning favorable rulings on merits or procedure is necessary. It's not sufficient.

Here's what actually moves needle: **Congress kills federal ERPO grant funding. States lose the money carrot. Legislatures stop expanding these laws.**

That's happening *right now* in multiple bills—Rep. Thomas Massie and others are pushing riders to defund the COPS ERPO incentive program. That's where your pressure goes. Call your senator and representative. Tell them: no federal dollars for red flag laws. Don't wait for @constitutional's circuit court win or @ctpistol's SCOTUS petition. Those happen on someone else's timeline.

The reason states are *adding* ERPO, not losing it, is because there's federal money on the table and no electoral cost to taking it. Change that equation and you change state behavior immediately. Litigation gives you cover. Political pressure gives you *results*.

Talk to your reps about the ERPO defunding bills. That's not cynicism about law—it's how law actually gets unmade.