Texas bans red-flag laws that allow guns to be taken from owners in crisis

Texas’s move to relax firearms regulations comes as deaths from gun-related accidents, homicides and suicides outrank car crashes and cancer as the top cause of death among children ages 1 to 17, according to the most recent data from the Center for Gun Violence Solutions at Johns Hopkins University. And a study published this month in the journal JAMA Pediatrics found that states with “permissive firearm laws” saw an increase in pediatric firearms deaths compared with states with tougher regulations in the wake of a 2010 Supreme Court decision on gun rights.

Here’s what to know about the new Texas laws.

A BAN ON RED FLAG LAWS

S.B. 1362, known as the Anti-Red Flag Act, preemptively bars the state from adopting or enforcing most kinds of extreme risk protective orders. ERPOs, as they’re known, allow a judge or magistrate to temporarily restrict a person’s access to firearms — either ones they already own or ones they plan to buy — during a crisis.

The new law prohibits judicial authorities from using a red-flag order in civil cases to confiscate a person’s guns and threatens them with criminal penalties, including jail time, if they try to enforce such an order. Texas judges can still issue ERPOs in criminal cases and for existing domestic violence protection orders.

The Anti-Red Flag Act also seeks to gird against any future federal red-flag law. S.B. 1362 prevents Texas entities from accepting federal dollars to help implement or enforce an ERPO and declares that any federal emergency protective order law that violates Second Amendment rights is unenforceable in Texas.

Texas was already among 29 states that had not adopted a red-flag law for firearms before state Rep. Cole Hefner (R), who sponsored the bill, pitched it as a bulwark against “law-abiding citizens” losing their Second Amendment rights without due process.

“We don’t need magistrates or judges determining, without due process, someone’s constitutional rights,” Hefner said at a committee hearing in May.

Nicole Golden, executive director of the nonpartisan group Texas Gun Sense, called the idea that red-flag laws erode due process “misinformation.”

“If you look at other states’ bills, they’re built specifically with those protections in mind,” said Golden, whose organization opposed the red-flag ban in Texas.

Gun-control advocates argue red-flag laws are an important tool to prevent people who may be homicidal or suicidal from using a gun to hurt others or themselves. Golden said she is especially frustrated that the new Texas law bans state entities from recognizing out-of-state ERPOs.

Constitutional law scholar Darrell Miller said the criminal provisions in the Anti-Red Flag Act — by which authorities who issue an ERPO can be punished with convictions, fines and even jail time — place the law in a long and “very disturbing” trend of what he termed “punitive preemption.”

“Laws [like S.B. 1362] not only tell cities and local governments that they can’t have a different policy from the state; they say, ‘If you have a different policy, we’re going to make it a crime to do so,’” said Miller, who researches constitutional law and state and local government law at the University of Chicago Law School.

Miller called “punitive preemption laws” a phenomenon that conservative lawmakers in places such as Texas might wield against liberal enclaves, such as Austin or Houston.

“It essentially criminalizes ordinary political differences,” Miller said.

EASIER ACCESS TO SAWED-OFF SHOTGUNS

A bill decriminalizing short-barrel firearms, including sawed-off shotguns and rifles with barrels less than 16 inches long, was another bill from the Texas legislative session touted as a win for gun rights.

S.B. 15 9 6 removed requirements for owning a short-barrel shotgun, including previous penalties for owning the weapon without proper registration. A 2023 policy change by the Bureau of Alcohol, Tobacco, Firearms and Explosives reclassified pistols with stabilizing braces as short-barrel firearms, a move that under the existing Texas law made weapons people already owned illegal.

“This act by ATF criminalizes approximately 360,000 firearms under Texas law,” Republican state Sen. Brent Hagenbuch, who wrote the bill, said at a hearing in March. “The simple truth is short rifles are never a problem and continue not to be a problem.”

While short-barrel firearms are legal at the federal level with proper licensing and fees, many states enacted tougher laws to restrict them starting in the 1930s, said Robert Spitzer, a State University of New York at Cortland professor and expert on criminal law and gun control.

“The very reason these anti-sawed-off shotgun laws were enacted was precisely because they were the weapons of choice for gangsters,” Spitzer said. “They were concealable, and the spray was wider than a regular shotgun. You do that because you can hurt more people.”

A short-barrel shotgun was one of the weapons used in the 2018 Santa Fe High School shooting that left eight students and two teachers dead. Golden, of Texas Gun Sense, said survivors from Santa Fe and Uvalde went to the state Capitol in the spring to plead with lawmakers to scrap the bill.

NOT ALL PRO-GUN LEGISLATION ADVANCED

In the legislative session after Uvalde, there was a pause on moving what we considered dangerous gun bills forward,” Golden said. “Three years after Uvalde, it’s back to business as usual.”

Bills to end locally run gun buyback programs and allow Texas to recognize handgun licenses from other states sailed through the legislature and were signed into law by the governor.

But Golden said coalitions of gun-control groups, including Santa Fe and Uvalde shooting survivors, also helped scuttle several gun bills. Among them were a bill that would have lowered the age to carry a handgun to 18; one that would have allowed convicted felons to possess firearms; and one that would have loosened restrictions on guns in certain locations, such as hospitals and large events.