One of the proposals to reduce gun violence following last weekends two mass shootings is for the expansion of “red flag” laws in states. These laws empower the court to issue orders temporarily confiscating firearms from persons determined to be a threat to themselves or others.
South Carolina Republican Senator Lindsey Graham is pushing the proposal, adding that he believes he has bi-partisan support as well as President Trump’s backing.
“Many of these shootings involved individuals who showed signs of violent behavior that are either ignored or not followed up,” Graham said. “State Red Flag laws will provide the tools for law enforcement to do something about many of these situations before it’s too late.”
At least 17 states have Red Flag laws. The bill soon to be introduced by Graham and Connecticut Democratic Senator Richard Blumenthal would award grants to states to encourage law enforcement to work with mental health agencies to try to keep guns away from violent individuals using the Red Flag provision.
These laws vary from state to state, but here are the fundamentals:
The law allows for an individual (usually a family member, but some states allow law enforcement, a co-worker or a school administrator) to petition a judge for an Extreme Risk Protection Order.
The petitioner must make a clear and convincing case that the individual is a substantial risk to himself and/or others. The individual has an opportunity to respond to the claims and then a judge decides whether the person poses a threat.
If so, police confiscate the individual’s weapons and hold them temporarily. If not, nothing happens. In some instances, if the court finds the petitioner has made a false claim, they can face a criminal charge.
Supporters argue Red Flag laws fill in the gaps that exist in the criminal justice system and mental health adjudications by enabling individuals take action to stop gun violence. David French, a conservative senior writer for The National Review, argues that Red Flag laws are a common denominator in the gun violence debate.
“There is one place where gun owners and gun-rights opponents meet: Americans who have demonstrated by their own conduct that they’re not fit to own a weapon should not be allowed to own a weapon,” French wrote.
That may be true, but when you get down into the details of such laws, the compromise becomes more elusive.
Opponents see the potential for abuse by an angry relative or disgruntled co-worker. They also argue that the Red Flag rules run afoul of due process by assuming the individual is guilty and infringes on their 2nd Amendment rights.
Author and Harvard Law School Professor Alan Dershowitz opined in the Wall Street Journal Wednesday that while Red Flag laws are well-intentioned, they may create a slippery slope. “If the government can take your guns based on a prediction today, what will stop it from taking your liberty based on a prediction tomorrow?”
Yes, a Red Flag law could be abused, especially if it is written too broadly. However, these laws can be crafted so they pass constitutional muster while also empowering individuals with the gun equivalent of “see something, say something.”
The right of an individual to own a gun is enumerated in the Constitution and reinforced by the U.S. Supreme Court in the Heller decision, and we know how the argument goes: Guns don’t kill people; people kill people.
So, the primary issue is how do you keep guns out of the hands of people intent on killing people? Red Flag laws are a reasonable step.