EXPLAINER: Virginia’s ‘Red Flag’ law

We’re working for you to find out how the gun laws work and who they impact

We're working for you to find out how the gun laws work and who they impact.

VIRGINIA – President Joe Biden issued an executive order hoping to prevent gun violence by enforcing gun laws already on the books.

Roanoke County Commonwealth’s Attorney Brian Holohan says Virginians likely won’t see any changes.

“I don’t know that that order will have much effect with the average citizen here in Virginia,” said Holohan.

In 2020, the Virginia General Assembly passed several gun safety laws, including requiring background checks for all gun sales and enacting substantial risk orders —also known as “red flag” orders.

If someone poses a risk to themselves or others, a judge can temporarily prevent that person from buying or possessing a gun.

“Those are more oriented toward people who are having a mental health crisis or someone who poses a risk to others that wouldn’t qualify as a criminal matter,” said Holohan.

John Fishwick is an attorney and the owner of Fishwick & Associates. He is the former United States Attorney for the Western District of Virginia.

He says there are procedures in place to protect that individual’s Second Amendment rights.

An emergency order is short-term. It only lasts 14 days, unless it’s extended by a judge.

“There’s a lot of checks in it so that guns can’t be taken away from somebody for the wrong reason,” said Fishwick.

Since the law’s passage, Virginia State Police have recorded 362 emergency substantial risk orders.

Holohan says it’s important to note that not everyone can file a petition for a substantial risk order, only law enforcement or commonwealth’s attorneys.

“If someone has a grudge against you or doesn’t like you, they can’t just go to a magistrate and say that you are a risk and then have your guns taken away,” said Holohan. “It has to be vetted by a law enforcement agency or a prosecutor’s office.”

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You can watch Lindsey during Virginia Today every weekend or as a reporter during the week!