Supreme Court’s Hemani Ruling Spells Doom for Unlawful Red Flag Laws
The Supreme Court’s decision in United States v. Hemani repeatedly used the phrase “pre-deprivation process,” which should send shivers down the back of anti-gunners. The Court made clear Americans cannot lose their right to bear arms without a pre-deprivation hearing, yet that is the entire point of today’s red flag law movement.
Much of the coverage of the Supreme Court’s decision in U.S. v. Hemani focused on its holding: the federal ban on gun possession by users of illegal drugs, 18 U.S.C. § 922(g)(3), could not constitutionally be applied to a man whose only offense was unlawfully using marijuana. That result matters obviously. But within the Court’s opinion appeared a phrase that lands squarely against one of the anti-gun movement’s favorite weapons. The Court repeatedly referenced the concept of “pre-deprivation process.”
In other words, before an American may be disarmed by the government, there must be a pre-deprivation legal process during which the American can fight the attempt to disarm him. Properly understood and applied, this notion provides gun owners with a powerful argument against red flag laws.
The Historical Approach to Disarming a Dangerous Person
Let’s start with a distinction the red flag debate is designed to obscure. America has always had a way to deal with violent criminals (prison or death) and the dangerously mentally ill (civil commitment). The civil commitment process has been around for generations in every state. Unlike modern red flag laws, America’s commitment processes include robust due process protections designed to protect the individual and fundamental right to freedom against wrongful charges of mental incompetence. Some of those due process protections include the right to appointed legal counsel, expert witnesses, the right to confront witnesses, and setting the government’s burden of proof at the heightened “clear and convincing evidence” standard.
In contrast to civil commitment laws, modern red flag laws are designed to bypass the well-established due process protections of those accused of being dangerous to themselves or others. Red flag laws are specifically built to circumvent the usual due process protections of American gun owners. Red flag laws often allow courts to take one’s firearms away on an ex parte petition, which means without the gun owner first being able to fight the charge. There is no doubt that red flag laws are NOT about public safety, but are about subverting Second Amendment rights. That the only remedy arising from such laws is the confiscation of guns (not knives or cars, or a commitment to a mental institution) means the law reaches exactly one class of Americans: those who own guns.
In reality, if you are truly too dangerous to hold a firearm, then you are probably too dangerous to walk the street, and civil commitment is the correct answer that the law has always supplied.
What Hemani Demands: Process Before Deprivation
Here is where the Hemani decision changes the terrain. The Supreme Court did not treat the timing of disarmament as an afterthought; it made process central. Reviewing the historical analogues the government offered, the Hemani majority observed that a vagrant could be jailed “generally only upon a conviction,” a habitual drunkard civilly committed “usually only after proceedings before something like a probate court,” and a surety demanded only after “a proceeding before a justice of the peace.” Each required process before the loss of liberty. The Court then said that: “None of that holds true for § 922(g)(3).”
The Hemani Court explained that:
“On the government’s account, the statute automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user and until he ends his drug use–all without any pre-deprivation process. To be sure, and as the government highlights, an unlawful user who violates this ban is entitled to “a full-dress criminal trial” before he can be imprisoned or permanently disarmed. Brief for United States 26. But be that as it may, §922(g)(3) offers an unlawful user no pre-deprivation process before his “‘temporary disarmament,’” the very burden the government says is akin to the burden vagrancy, civil-commitment, and surety laws imposed on habitual drunkards.”
That was a defect, not a virtue. The Court pointedly contrasted sections 922(g)(3) with subsections (g)(1) and (g)(4) (the bans on convicted felons and those “adjudicated as a mental defective” or “committed to a mental institution”), which “involve some manner of pre-deprivation process.” A conviction. An adjudication. A hearing. The constitutional through-line is unmistakable: the government must give you your day in court before it takes your arms, not after. And the Supreme Court just said that in Hemani.
Rahimi Already Pointed the Way
The Hemani decision builds on United States v. Rahimi, 602 U.S. 680 (2024), where the Supreme Court upheld disarming a man subject to a domestic-violence restraining order. The Supreme Court in Rahimi found: “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”
Chief Justice John Roberts flagged, in a footnote, that the objections to that statute “appear to sound in due process rather than the Second Amendment” but declined to reach the question because Mr. Rahimi never raised it. Hemani picks up the thread Rahimi left dangling and insists that due process come first.
The Red Flag Problem
Lay these principles against a typical red flag statute and the conflict is obvious. The order issues first; the firearms vanish; the hearing, if it happens, comes later (and at great financial and time expenses to the gun owner). That is deprivation before process, the precise sequence the Fifth and Fourteenth Amendments to the Constitution forbid when they bar the government from taking “life, liberty, or property, without due process of law.”
Hemani adds a second demand these laws struggle to meet: an individualized finding about the dangerousness of the specific gun owner.
The Court faulted the government for not caring “whether [Hemani’s] drug use has ever made him a danger to himself or others,” refusing to let a categorical label substitute for proof about the particular person. Red flag petitions, built on allegation and prediction rather than an adjudicated finding of present dangerousness, run headlong into both requirements.
I have argued for years that physically-violent dangerousness must be proven in court before a neutral judge (not just asserted) and that the Constitution fixes the order of operations: notice of a hearing, then an actual hearing, and finally, if warranted, a deprivation of a constitutional right. Hemani now says this in the Supreme Court’s own words. Litigators fighting these confiscation regimes have a new and authoritative tool, and they should use it. Godspeed!
About Mark W Smith
Constitutional attorney and bestselling author Mark W. Smith hosts the Four Boxes Diner Second Amendment channel on Youtube and Rumble; is a member of the U.S. Supreme Court Bar; and his Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the U.S. Supreme Court. Professor Smith’s most recent book is ISRAEL DISARMED: What the October 7 Attack Teaches Americans about the Right to Bear Arms and he has lectured at Harvard Law School, Yale Law School, Princeton University, the Wharton School at U. Penn, and Oxford University. He is a frequent speaker at the Federalist Society’s Annual National Lawyers Convention in Washington, D.C.
