¶ Overview
Eric Toney opposed “red flag laws” and argued Wisconsin’s existing Chapter 51 mental health commitment process provided sufficient due process protections to restrict firearm access for dangerous individuals.
Wisconsin’s Chapter 51 law allowed courts to seize firearms after involuntary commitment proceedings while permitting individuals to later petition for restoration of their gun rights. The Wisconsin Anti-Violence Effort argued Chapter 51 was “more complex” than Extreme Risk Protection Order laws and “often inadequate for providing safety to someone who is suicidal.”
According to Everytown Research & Policy, Extreme Risk laws limited who could file petitions, required evidence of serious threats, and ensured respondents had opportunities to present a defense. Everytown Research & Policy also found the process included timely hearings and had been recognized by the U.S. Supreme Court as meeting constitutional due process standards.
¶ Toney Opposed “Red Flag Laws” And Argued Wisconsin’s Existing Mental Health Commitment Laws Were Sufficient While Critics Said They Failed To Protect Wisconsinites In Crisis
¶ Eric Toney Opposed “Red Flag Laws” And Argued Wisconsin’s Existing Mental Health Commitment Laws Were Sufficient To Address Dangerous Individuals With Firearms
2022: Eric Toney Opposed “Red Flag Laws” Designed To Temporarily Remove Firearms From People Deemed A Danger To Themselves Or Others. According to WUWM 89.7, "Toney supports gun access. He opposes red flag laws, which keep guns out of the hands of people who a judge has found to be a danger to themselves or others, and says these laws serve to restrict people’s lawful right to exercise their constitutional Second Amendment rights. Toney also says that Wisconsin has laws on the books that guarantee due process rights for any firearm restrictions.” [WUWM 89.7, 11/3/22]
2022: Eric Toney Argued That Wisconsin Should Enforce Existing Mental Health Commitment Laws Instead Of Passing “Red Flag Laws.” According to WUWM 89.7, “He said, ‘What we need to do is enforce the laws that we have on the books. You talk about someone that's a danger to themselves or others with a major mental illness that's treatable. Chapter 51 mental health commitment — the law is on the books where somebody can get in front of a judge within 72 hours, a jury trial within two weeks and have their firearm rights taken from them. We need to enforce the law we have on the books." [WUWM 89.7, 11/3/22]
- Everytown For Gun Safety: Extreme Risk Protection Orders, Often Called “Red Flag Laws,” Allow Courts To Temporarily Restrict Gun Access For Individuals In Crisis. According to Everytown For Gun Safety, “When a person is in crisis and considering harming themselves or others, family members and law enforcement are often the first people to see the warning signs. Extreme Risk laws, sometimes referred to as ‘Red Flag’ laws, allow loved ones or law enforcement to intervene by petitioning a court for an order to temporarily prevent someone in crisis from accessing guns.” [Everytown For Gun Safety, Archived 4/24/26]
¶
Toney Claimed Existing Mental Health Laws Were The Proper Way To Restrict Firearm Access
2022: Eric Toney Pledged To Defend Second Amendment Rights And Pointed To Wisconsin’s “CH 51 Mental Health Commitment Statute” As The Proper Way To Restrict Firearm Access. According to IVoterGuide, "What restrictions on gun ownership are needed to protect public safety? Toney: I will defend the Second Amendment and protect an individual’s right to possess a firearm, to use that for lawful purposes, including hunting and self-defense. We already have a CH 51 mental health commitment statute on the books that affords due process to restrict someone’s second amendment rights. This restriction requires the person to have a treatable major mental illness and to be a danger to themselves or others. If a jury makes this finding, with due process, it can restrict one’s right to possesses a firearm."
[IVoterGuide, Archived 5/5/26]
¶ Critics Argued Wisconsin’s Chapter 51 Commitment Process Delayed Firearm Intervention Until A Mental Health Crisis Escalated And Failed To Adequately Prevent Suicides
¶ Wisconsin Anti-Violence Effort Argued Wisconsin’s Chapter 51 Commitment Process Could Delay Suicide Intervention Compared To Extreme Risk Protection Order Laws
Wisconsin Anti-Violence Effort Argued Wisconsin’s Chapter 51 Commitment Process Failed To Provide Adequate Suicide Prevention Tools Compared To Extreme Risk Protection Order Laws. According to Wisconsin Anti-Violence Effort, "Doesn’t Law Enforcement Already Remove Firearms From People Who Pose a Threat? Sometimes. But, municipalities have been sued for this because they do not have the legal backing ERPO provides. Meanwhile, Chapter 51, which is sometimes invoked by law enforcement, is more complex than ERPO and is often inadequate for providing safety to someone who is suicidal." [Wisconsin Anti-Violence Effort, Archived 5/8/26]
¶ Wisconsin Law Allowed Courts To Seize Firearms After Involuntary Commitment Proceedings
Wisconsin’s Chapter 51 Commitment Law Allowed Courts To Order Firearm Seizures After Involuntary Commitment Proceedings, While Allowing Individuals To Petition For Restoration Of Gun Rights. According to Wisconsin Statute Chapter 51, "1. If the court makes the disposition under par. (a) 3., 4., 4m., or 5., the court shall order the individual not to possess a firearm, order the seizure of any firearm owned by the individual, and inform the individual of the requirements and penalties under s. 941.29 if the court determines that the individual is prohibited, under 18 USC 922 (g) (4), from possessing a firearm. 1m. a. If a court orders an individual under subd. 1., or ordered an individual under s. 51.20 (13) (cv) 1., 2007 stats., not to possess a firearm, the individual may petition that court or the court in the county where the individual resides to cancel the order." [Wis. Stat. § 51.20(13)(cv)1m.a., 2025]
- Wisconsin Law Allowed Individuals To Seek Restoration Of Firearm Rights After Involuntary Commitment Proceedings. According to Wisconsin Statute Chapter 51, “B. The court considering the petition under subd. 1m. a. shall grant the petition if the court determines that the circumstances regarding the disposition under par. (a) 3., 4., 4m., or 5. and the individual’s record and reputation indicate that the individual is not likely to act in a manner dangerous to public safety and that the granting of the petition would not be contrary to public interest." [Wis. Stat. § 51.20(13)(cv)1m.b., 2025]
¶ Everytown Research & Policy Found That Extreme Risk Protection Orders Included Due Process Safeguards And Legal Protections
Everytown Research & Policy: Extreme Risk Protection Orders Included Multiple Safeguards, Including Limits To Who Could File A Petition, Evidentiary Standards, Opportunities For Respondents To Present A Defense, And Penalties For False Claims. According to Everytown Research & Policy, “Extreme Risk laws are designed to defuse dangerous situations while also ensuring due process and a system of checks and balances. In each state with an Extreme Risk law, only specific groups of people may request an ERPO. For example, states typically limit ERPO petitioners to law enforcement officers and family or household members. These limitations mean that only people who are very close to the person at risk of harming themselves or others, or who are trained to identify and respond to such risks, can bring forth these cases. State laws typically specify the types of evidence that a judge can consider in an ERPO case. For example, evidence of recent acts and threats of violence or recent unlawful or reckless use of a firearm. The respondent then has the opportunity to respond to any evidence presented, and present their own evidence. Many states’ laws include penalties that apply if the petitioner presents false evidence.” [Everytown Research & Policy, 4/17/20]
Everytown Research & Policy: Extreme Risk Protection Orders Included Court Review, Evidentiary Standards, And Hearings That Provided Due Process Protections. According to Everytown Research & Policy, “The model process for obtaining an extreme risk protection order provides due process protections. Petitioner files a petition in court. This is generally a law enforcement or a family member. This is a civil, not criminal, matter. Judge reviews the petition to determine if there is sufficient evidence that the person poses an imminent threat to themselves or others. Judge issues emergency order, usually valid for 7–14 days, prohibiting the respondent from purchasing or possessing firearms. Judge denies emergency order. A hearing is scheduled within 21 days to determine if a final order should be issued. Police notify respondent of emergency order and date of final hearing. Any firearms in their possession are relinquished. Police notify respondent of final hearing. Judge holds final hearing within 21 days to determine if there is sufficient evidence that the person poses a risk to themselves or others with a firearm. Both parties may present evidence. Judge issues final order, prohibiting the respondent from purchasing or possessing firearms for a specified period (up to one year). Subject to renewal if necessary. The respondent may petition for early removal of the order. Judge denies final order. Any firearms relinquished under an emergency order are returned to respondent.”
[Everytown Research & Policy, 4/17/20]
Everytown Research & Policy: The U.S. Supreme Court Recognized The Extreme Risk Protection Order Processes Met Constitutional Due Process Standards. According to Everytown Research & Policy, “The United States Supreme Court has recognized, in multiple contexts, that this process—a pre-hearing deprivation followed by a full hearing within a reasonable time frame—satisfies the due process of law required by our Constitution. Following the framework established by the Supreme Court, multiple federal and state courts have issued rulings that strongly suggest they would uphold an Extreme Risk law if challenged in court on due process grounds.” [Everytown Research & Policy, 4/17/20]