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The National Rifle Association is right to support President Trump’s call for state-level Emergency Risk Protection Orders (ERPOs) – under which a court can take guns in rare situations for just a few days when there is evidence that a person may be on the verge of extreme violence – because, if written properly, such temporary measures are consistent with the original meaning of the Constitution’s Second Amendment and Due Process Clause.
President Trump supports states’ passing laws to allow for ERPOs. Details are still being developed and so reports may be updated as legislative debate begins. But the basic concept is that if a family member informs law enforcement that their loved one is spiraling out of control into violence, and swears an affidavit giving the details – under penalty of perjury, so the informant can go to prison if they are lying – then a judge could issue an ERPO to temporarily confiscate weapons in that person’s possession.
Period - Days - Person - Weapons - Court
Within a very short period, perhaps just three days, the person whose weapons were seized could demand a court to review the ERPO. The burden would be on the government to show, perhaps by “clear and convincing evidence” (a very difficult standard to meet) – that the person truly is at least temporarily a danger to himself or to others. If so, then the police can continue to hold the weapons while further proceedings take place.
If the government cannot produce that much evidence, then the weapons must be immediately returned to the owner.
Regime - California - Law - California - ERPO
This is very different from a regime like California’s law. In California, an ERPO (called a “gun violence restraining order” in that state) requires only “substantial evidence” – meaning you have to show something significant, but far less than a 51 percent likelihood – that a person is dangerous. If...
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