By Amy Swearer | The Daily Signal
The national gun control conversation often sounds like a broken record, with the same advocates resorting to the same talking points about decades-old proposals, such as banning so-called “assault weapons” or imposing universal background checks.
But, as we noted in our recent article “Answering Common Gun-Related Questions After Recent Shootings in El Paso and Dayton,” the latest tragedies have added some new, complex layers to the mix—layers that are not always easy to parse through in the midst of all of the background noise.
One of those added layers is the focus on “red flag” laws, also known as “extreme-risk protection orders” or gun violence restraining orders.
What are these laws? What do they accomplish that existing laws don’t already do? What concerns should law-abiding Americans have about them?
These are the types of questions that must be explored in depth, with reasoned analysis and absent knee-jerk conclusions.
Q: What are red flag laws?
A: The specifics of red flag laws vary by jurisdiction, and no two red flag laws are identical. As a general rule, these laws allow non-state actors (family members, teachers, etc.) to request that a hearing be held on whether someone close to them should have his or her right to possess firearms temporarily revoked because he or she is an extreme risk of danger to self or others.
Some states only allow those private individuals to ask law enforcement officers to investigate and file petitions with courts, while other states allow them to petition the courts directly.
The goal of these laws is to better identify individuals who are becoming increasing dangerous and take steps to temporarily disarm (and, if appropriate, treat) them before they can harm themselves or anyone else.
These laws have become increasingly popular since the February 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, even though the first such law was enacted by Connecticut in 1999. Today, 17 states plus the District of Columbia have passed some form of red flag legislation.
Q: What’s wrong with current laws?
A: Federal law currently prohibits individuals from possessing firearms if they have been convicted of a felony or domestic-violence misdemeanor, have an active restraining order against them, or have been committed to a mental health institution.
The problem is that very few mass public shooters have disqualifying criminal convictions or mental health histories that prevent them from legally purchasing firearms, even though they often display many signs of being a serious risk of danger to themselves or others.
Further, not all mass public shooters have a diagnosable mental illness, and therefore can’t be disarmed through civil commitment procedures.
In other words, there’s a gap in existing laws where objectively dangerous people are still permitted to lawfully purchase and possess guns because they have not yet reached a mental health crisis or committed an atrocity.
Part of the problem is that civil commitments are a legally intensive process with serious (and often lifelong) implications for the person being committed. They are, therefore, often reserved as a last resort when all else has failed.
Red flag laws can provide an intermediate “gap-filler” option for situations where someone is clearly becoming a serious threat to himself or the public, but has not yet committed a serious crime or falls outside the scope of existing laws.
Moreover, red flag laws can allow non-state actors to play a more significant role in alerting law enforcement officials and courts to the dangers posed by individuals who may otherwise “fly under the radar.”
Friends, family members, and co-workers are often well-positioned to recognize when an individual is becoming an extreme risk of danger and have been instrumental in preventing mass public attacks.
Q: What about the Second Amendment?
A: The Second Amendment protects the right of law-abiding citizens to keep and bear arms commonly used for lawful purposes. This right is fundamental to our “scheme of ordered liberty” and antithetical to broad prohibitions on civilian firearm access or the imposition of significant burdens on the exercise of the right.
Like all other enumerated rights, however, the right to keep and bear arms is not unlimited. No one would seriously suggest that violent criminals maintain a Second Amendment right while serving their sentence of imprisonment, or that individuals involuntarily committed to psychiatric facilities must be permitted to keep firearms in their hospital rooms.
As the Supreme Court has inferred, certain prohibitions on possessing firearms are “presumptively lawful” for convicted felons or the mentally ill.
The Supreme Court has not further explained the reason for why these prohibitions are presumptively lawful, but the text, history, and tradition of the Second Amendment do support a narrow premise for the temporary disarmament of dangerous individuals.
Where the facts and circumstances give specific reason to believe that a person is likely to cause imminent unlawful harm to himself or others, the person may be disarmed until he can reassure the community that he does not pose a violent threat.
Of course, the Constitution also demands that such individuals receive meaningful due process protections prior to the restriction of their rights, and great pains should be taken to ensure that individuals cannot be punished for merely holding offensive views or engaging in objectionable, but nonviolent, behaviors.
The danger of abuse, however, is not unique to red flag laws. All laws—including criminal laws, civil commitment laws, and laws allowing for the imposition of restraining orders—can be misused or misapplied to harass disfavored groups.
The proper solution to the risk of laws being improperly applied is not to avoid laws altogether, but to craft laws narrowly, to afford effective oversight and accountability, and to provide meaningful remedies in cases of abuse.
All of this can be accomplished in a red flag framework.
Q: Could red flag laws have stopped previous shootings?
A: Unlike other commonly proposed gun control measures, red-flag laws could have been used to prevent many high-profile mass public shootings without broadly infringing on the rights of all lawful gun owners.
For example, the parents of the man who killed six people and wounded 13 in Tucson, Arizona, in 2011 were so worried about his mental health, they disabled his car and tried to hide his firearms. They tried unsuccessfully to get him mental health treatment.
A red flag law would have given these parents a means to petition a court for help without relying on county attorneys, and their son could have been disarmed and steered toward treatment before he reached a breaking point.
Similarly, red flag laws could have prevented the Parkland, Florida, shooting by allowing the family with whom the shooter was staying to petition a court for disarmament after local law enforcement and school officials refused to take action, despite repeated indications that the shooter was dangerous.
No one seriously suggests that any one piece of legislation could provide an easy fix to all mass public shootings, and red flag laws are certainly not a complete answer.
They are, however, a potentially important tool in the broader toolbox for combating gun-related violence in the United States, and can be paired with other important measures, such as those addressing untreated mental health issues or increasing the ability of law-abiding citizens to defend themselves in public places.
Q: What makes a good red-flag law?
A: Laws that restrict an individual’s right to keep and bear arms, even temporarily, must follow some important guidelines.
To be unobjectionable, red flag laws should, among other considerations:
- Use narrow definitions of “dangerousness” that are based on objective criteria and that don’t treat factors such as lawful firearm ownership or political affiliation as presumptively suspicious;
- Be temporary in nature, limited only to the period of time the person remains a danger to himself or others, and provide for the prompt restoration of firearms and corresponding rights when the danger no longer exists;
- Afford strong due process protections, including high burdens of proof (i.e., “clear and convincing evidence”), cross-examination rights, and the right to counsel.
- Provide meaningful remedies for those who are maliciously and falsely accused, and expunge any records of petitions that are not granted;
- Be integrated with existing mental health and addiction systems to ensure that people who are deemed to be dangerous because of underlying factors receive the treatment they need.
Research is limited, but what we do have shows that red flag laws are not used as sweeping gun-confiscation measures. Rather, they effectively target a small class of individuals who are dangerous but can’t otherwise be reached under existing mental health or criminal laws.
Importantly, the available evidence suggests that judges do not merely rubber-stamp petitions, especially when adequate due process protections are implemented.
Studies of red flag laws in Connecticut and Maryland show that in a significant percentage of cases, petitions are either not granted in the first place, or petitions that were initially granted are rescinded upon further review, and the person’s firearms are returned.
Q: Aren’t red flag laws dangerous for law enforcement?
A: Certainly, law enforcement officers may face violent threats while serving red flag orders and seizing firearms from individuals determined to be dangerous under these laws.
However, law enforcement officers often respond to dangerous situations during the normal course of their duties, and there’s no practical difference between executing a red flag seizure, serving a normal arrest warrant, or taking someone into emergency protective custody when he or she is in the middle of a mental health crisis.
In fact, red flag laws may help reduce the overall risk to law enforcement by allowing mentally unstable or dangerous people to be identified and disarmed prior to the point where they are actively engaged in violent behaviors directed toward themselves or others.
By disarming these individuals and rerouting them toward proper treatment or other appropriate intervention before they reach a crisis stage, police officers and communities are ultimately safer from potentially volatile situations, not less safe.