It’s been a tumultuous month since the devastating shootings in Buffalo, NY, and Uvalde, TX. From the President’s immediate politicization of the event to the public debates over the gun-buying age to Matthew McConaughey’s impassioned speech at the White House, emotions have run high. As Americans across the nation mourn the innocent victims of these senseless acts of violence, the
federal government has faced immense pressure to do something — anything — to stop any more horrific tragedies from happening. Congress has stalled on this issue for nearly 30 years, caught in a Catch-22 situation in which it must somehow protect schools without violating Second Amendment rights.
But for the first time in recent history, US Senate Republicans and Democrats believe they’ve negotiated a way out of this predicament with a plan that will protect the public from further gun violence without treading on the rights of responsible gun owners; on Sunday, 20 senators announced an outline for a “bipartisan gun safety agreement” that promises to provide common-sense solutions to gun violence.
Admittedly, there is much good to be found in their framework, including the designation of new funding for school safety and mental health resources — but for gun rights advocates, the proposal to incentivize more red flag laws is cause for concern.
New Senate Gun Safety Plan
The bill's full text is not yet available for review, so it has yet to be established what the specifics of this plan will entail. But according to Connecticut’s Senator Chris Murphy on Twitter, the following list details the general components of the Senate’s plan:
Funding for crisis intervention orders (red flag laws) that allow law enforcement to temporarily take guns away from people who pose a danger to others or themselves
Funding for mental health and school safety, including community mental health clinics
Closing the “boyfriend loophole,” prohibiting domestic abusers from buying a gun if they are convicted of abuse against their partner
Prohibiting straw purchasing — the act of buying a firearm on behalf of someone who may not legally possess one — to stop the flow of illegal guns
Enhanced background checks for under-21 gun buyers and a short pause to conduct the check
Clarification of the law regarding who needs to register as a licensed gun dealer to make sure all commercial sellers are doing background checks
Few citizens will find it objectionable to prohibit domestic abusers from gun ownership, but would the introduction of more red flag laws make a noticeable difference in the level of gun violence in this country? The research and data available on existing red flag laws provide helpul insights.
What Are Red Flag Laws?
If you aren’t familiar with red flag laws, they’re also known as extreme risk protection orders, and they enable teachers and family members to petition courts for the temporary confiscation of guns from those who may be a danger to themselves or to others. (Some states limit petition rights to direct family members and dating partners, but California expands this right to ex-dating partners, friends, employers, and even coworkers.)
The idea of identifying and disarming dangerous people before they commit crimes has widespread support (polls show most Americans support the disarming of dangerous individuals),
but poorly drafted red flag laws can be problematic. Since 2018, there are 19 states with red flag laws, and most of these states require no proof that a threat is imminent in order to issue a confiscation order. In that same vein, red flag laws bring up concerns surrounding efficacy, due process, and the constitutionality of confiscating firearms from those who have committed no crime.
Are Red Flag Laws Effective Where They Already Exist?
Murky Correlation Between Gun Crime and Confiscation Orders
To understand whether or not red flag laws have been effective, we can look to states that have long had these laws in place. Connecticut was the first state to pass red flag laws in 1999. In April 2020, the RAND Corporation conducted an evaluation of extreme risk protection orders and their impact on gun use outcomes in long-time red flag states like Connecticut. The evidence that these orders changed the outcomes of mass shootings, officer-involved shootings, accidental deaths, and violent crime was limited and inconclusive. In 2019, an academic researcher from The Policy forum pointed out that current measures of success in some states set a scary precedent, saying,
“… In places like Maryland and Florida, success isn't measured in lives saved. Intuitively, it’s impossible to determine how many lives were saved or if lives were ever truly at risk; thus the only practical measure of success for such a law is the number of guns seized and people denied their rights.”
If more states start passing red flag laws, more data will surely become available to validate or discredit these laws. But until that time, it may be better for Congress to delay action on these types of laws until there is evidence that they do what they’re supposed to do.
Lack of Use Due to Implementation Questions
Poorly written red flag laws are also frequently underutilized because they lack a solid structure to guide the implementation. The Washington Post showed that after California passed its red flag laws in 2016, they were hardly used for two years — and the same can be said for red flag laws in Washington D.C. According to the New York Times,
“Connecticut’s experience shows that the laws are not 100 percent effective: The gunman who killed 26 people at Sandy Hook Elementary School in December 2012 had access to guns even though people who knew him said he had shown troubling signs before the attack.”
Even in places were red flag laws are long-established, many aren't fleshed out enough to serve their intended purpose.
Uptick in Violent Encounters During Gun Confiscations
What’s more, recent instances have even shown red flag laws to be the cause of more violence, as was the case in Maryland in 2018 when an officer was fatally shot while executing a gun confiscation. In a time when police relations with the public are already tense, these confiscation raids will likely inflict further damage on community-police relations and put more lives at risk.
Weaponization of Red Flag Laws
In a 2019 Senate Judiciary Committee Hearing, Attorney David Kopel asserted,
“While the idea for these laws is reasonable, some statutes are not. They
destroy due process of law, endanger law enforcement and the public, and can be
handy tools for stalkers and abusers to disarm innocent victims. Nearly a third of such orders are improperly issued against innocent people.”
In states that require minimal evidence to justify confiscation orders, it’s not uncommon for bitter ex-partners and other soured acquaintances to weaponize these orders for the purpose of punishment and harassment. According to a study by Behavioral Science & the Law, a scientific journal, approximately a third of confiscation orders were wrongly issued against innocent individuals. In this highly contentious and polarized political climate, we can’t overlook the potential for gun control activists to weaponize red flag laws against lawful gun owners. These are legitimate concerns to consider.
“Dangerous” Is Subjective
Perhaps one of the core problems with red flag laws is the subjectivity of the definition of a “red flag." The basis for a petition can be as simple as an interest in weapons or the mere act of purchasing a firearm. (If this is considered suspicious activity, approximately half of my own social circle could have confiscation orders brought against them today.) This loose definition not only enables tattle tales to pursue vigilante justice reminiscent of the Soviet-style social structure, but it also turns a constitutionally protected right into the basis for property seizure.
Do Red Flag Laws Violate Due Process?
Red flag laws are in effect in states like Colorado, California, Florida, New Mexico, and the District of Columbia. Some states have fairer and better-written laws than others, but none of them sufficiently address the constitutional questions that arise as a result of depriving someone of their right to bear arms. Some states require a low burden of proof, for example, while others have no mechanism for providing help to those determined to be dangerous.
But most importantly, gun advocates feel that red flag laws flout due process guaranteed by the 5th and 14th Amendments, which ensure the right to legal proceedings, the presumption of innocence, notice of the crime, the right to an attorney, and so forth — before (NOT after) the government confiscates property. In essence, red flag laws have become a form of precrime wherein the individual is guilty until proven
innocent; in the words of Rep. Dan Crenshaw of Texas, “What you're essentially trying to do with the red flag law is enforce the law before the law has been broken.” Sometimes, a court will issue an ex parte confiscation order, which doesn’t require the gun owner in question to be present or even know about the order. It’s easy to see why this is workaround troubling to gun owners... and anyone else who reveres the Constitution.
The Justice Department issued a “model red flag law” in 2021 that was created with a commitment to due process, but it allows for ex parte hearings that strip a defendant of their rights based on “reasonable cause,” or a considerably low burden of proof. How can the federal government incentivize the states to construct their own red flag framework when they haven’t perfected their own in writing or in implementation?
Gun control activists make the counterargument that individuals deemed dangerous can appeal to
the courts and reclaim their property, so red flag laws don't violate due process. However, it takes considerable time and expense to do so. Economist Raheem Williams has astutely pointed out that such a process treats the Second Amendment as a privilege rather than a guaranteed right. He goes on to say,
“We have authority figures claiming they need the means to deny you of your constitutional rights in order to protect you from yourself. This disturbingly authoritarian doublespeak implies that some of our elected officials believe that people can’t be trusted with their rights. This clear attempt to coax ordinary citizens into surrendering their rights should be rejected as the degradation of a free society.”
How Can Red Flag Laws Be Remedied?
Given the information above, might it be possible that red flags, as they exist today, raise more red flags than they solve? They're not perfect in their present state, but lawmakers can ensure the fairness and legitimacy of these laws by adjusting them to meet the following conditions, as outlined by the Heritage Foundation:
Petitions are issued by law enforcement
The law lays out reasonable and explicit parameters for what it means to be “at risk”
Gun confiscation is followed by proof of corroborated evidence
The targeted individual is guaranteed due process rights (counsel, cross-examination, etc.)
Widespread officer training on gun confiscation best practices
Third parties are responsible and educated in firearm storage
Malicious and/or false petitions can be civilly remedied
Firearms are returned swiftly after a confiscation order is terminated
Gun permits are restored swiftly after false accusations
Laws are integrated with domestic violence, addiction treatment, and mental health infrastructure to address underlying problems that led a person to be dangerous
Local, state, and federal agencies cooperate in behavioral threat training and assessment
On that note, it’s important for lawmakers to remember they’re dealing with real people; they should shift their focus from disarming citizens to helping at-risk individuals get back to a good mental state by providing the necessary resources in their respective communities.
Red flag laws are certainly a better solution to gun violence than outright gun control, but they need to be implemented meticulously, leaving no loopholes open for misuse or constitutional violation.