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The Pros And Cons Of Red Flag Laws

The question is not whether we have a problem. The question is what to do about it.

The debate over red flag laws has gone from heated to intense over the course of the past week. While there are strong majorities in favor of the legislation, a vocal minority of Republicans oppose the idea, which has been endorsed by both President Trump and Senate Majority Leader Mitch McConnell. As with any debate, there are many misconceptions on both sides about the concept.

Let’s start by admitting that we have a problem. Going back at least as far as the Tucson shooting spree by Jared Lee Loughner in 2011, it has been evident that some people with histories of mental illness were skirting gun laws to buy weapons. Loughner bought his gun legally but lied about his mental health history on the paperwork. The background check did not include information about his mental health background that would have prevented him from buying a gun. While Loughner’s case brought national prominence to the problem, he was still preceded by Seung-Hui Cho, a South Korean Virginia Tech student with a long history of mental problems.

Since then, a number of high-profile massacres have been perpetrated by active shooters with similar backgrounds. James Holmes, who had made homicidal statements to a psychiatrist, legally purchased the guns that he used to shoot 82 people in an Aurora, Colorado movie theater. Adam Lanza, who shot 30 people at Sandy Hook Elementary School, showed “severe and deteriorating internalized mental health problems” per a report on the incident. The Washington Navy Yard contractor who shot 21 people, raised red flags at his employer, but the company did not report their concerns to the government and his access to secure areas was never revoked. A victim of the school shooting in Santa Fe, Texas, in which 42 people were shot, had previously told her mother two weeks before the shooting spree that she was afraid that the shooter “was going to come and kill her.” This is not an exhaustive list.

I am a gun owner, a Life Member of the NRA, and a staunch pro-Second Amendment supporter. I have never been an advocate for gun control. However, it is painfully obvious that we have a serious problem with access to guns by mentally ill and obviously violent people. This problem is killing hundreds of people every year.

Admittedly, spree killers account for only a small percentage of homicides every year, but that doesn’t diminish the seriousness of the problem. The randomness of the attacks, paired with the high body counts, sparks fear in many Americans. My company is one of many that now have annual training on how to deal with active shooter threats (“run, hide, fight”). Parents are left wondering whether a deranged student or outsider is going to kill their children at school. No one can know whether a trip to the grocery store might turn into a firefight. The problem is reminiscent of the high frequency of terrorist attacks in Israel a few years ago.

And the problem is getting worse. FBI statistics show that active shooter attacks are growing in terms of both the number of annual incidents and the number of casualties.

The question is not whether we have a problem. The question is what to do about it. Possible answers range from nothing to a total national gun ban and confiscation. The most practical solutions lie somewhere in between with most Americans rejecting both extremes. The Israelis built a wall around their country but that wouldn’t prevent most American shootings.

Traditional gun control also does little to stop active shooters while primarily impacting law-abiding gun owners. In 2018, California, which has some of the most restrictive gun laws in the country, had four active shooter attacks, more than any other state per FBI statistics. Illinois, another gun control state had two, the same number as Texas, which has some of the most permissive gun laws in the country. Interestingly, even though active shooter attacks have been on the rise, overall rates of violent crime have been falling since 1993. This remained true even after the “assault weapons ban” expired in 2004.

Even if a gun ban was constitutional and practical, there are enough guns in private hands that shootings would be a problem for decades to come. A determined shooter could find a gun on the black market just as easily as they can find illegal drugs today. Any attempt at nationwide gun confiscation would be a nightmare that turned law-abiding gun owners into criminals and takes law enforcement resources away from more serious crimes.

If traditional gun control isn’t the answer, neither is doing nothing. As shooting sprees dominate the headlines and body counts rise, voters are becoming more insistent that the government take action to stop shootings that often seem to have been easily preventable in hindsight. If conservatives refuse to come up with a plan to do so, Democrats would be happy to oblige.

The right to keep and bear arms is a fundamental constitutional right. Constitutional rights are not absolute, however. The fact that gun laws already are on the books and have been upheld by the courts is proof of the fact that they are permissible.

Especially where constitutional rights are concerned, the law should tread lightly, however. Regulations and limitations to rights should be as minimal as possible and should affect as few people as possible. They should also be effective and not part of a “shotgun” approach.

To determine what laws would be most effective at preventing active shooter attacks, we should look at the motives of shooters. Statistics on motives are difficult to find but shootings seem to fall into several broad categories. These include terrorism (both Islamic and white supremacist), workplace (including schools) and domestic violence, and rampages by the mentally ill.

The FBI and counterterrorism agencies have made headway against homegrown Islamic terrorists by monitoring mosques and jihadist websites. They should do the same for sites frequented by neo-Nazis and white supremacists if they aren’t doing so already. This is unlikely to work as well against workplace and school violence although the Wall Street Journal reported today that the agency wants to “aggressively monitor social media for threats.” This also raises privacy concerns.

Improving background checks is a good option. At present, background checks for gun buyers, but little mental health information is included. Much health information is proprietary to health providers as well as protected by HIPAA laws. Background checks are also subject to errors. For example, the shooter in Sutherland Springs, Texas lied about his domestic violence history when he bought his gun and then the conviction failed to show up on his background check.

But what about those people who already have guns and represent a danger to themselves or others? People who feel threatened can get a temporary protective order, a restraining order, or an injunction against someone they believe to be dangerous. Current law, however, doesn’t do anything about weapons that these people have.

So, for example, if a man threatens his ex, she can get a TPO to keep him away. If he ignores the order, he still has a gun to kill her. Even worse, waiting periods in many states mean that the ex cannot buy a gun in time to defend herself.

Red flag laws, technically called Extreme Risk Protection Orders (ERPOs), attempt to solve this problem. David French has written several excellent pieces on red flag laws this week. In particular, he has debunked many of the claims by opponents of the laws and laid out several characteristics of a good law.

Per French, “A good red-flag law is going to require that the petitioner come forward with admissible evidence, require the petitioner to carry a burden of proof and provide advance notice of the hearing to provide the respondent with an opportunity to contest the claims against him. In emergency situations — where advance notice isn’t possible or prudent — the law should provide the owner with a prompt opportunity to contest the claims against him. And, at all times, the petitioners (those seeking the seizure order) must bear the burden of proof, and respondents should be granted the right of appeal.”

Red flag laws are on the books in several states, while others, such as South Carolina have laws that create databases of people who have been adjudicated to be mentally defective. The details of state laws vary, but at least fifteen states already have some form of red flag law.

Proponents of the laws, such as Sen. Lindsey Graham (R-S.C.), who is “a big supporter of protective order laws – but at the local, not federal level,” say that the laws “take guns out of the hands of people that are showing disturbing signs or dangerous signs.” USA Today reports that Graham wants to create a federal grant program to encourage states to pass the laws.

Opponents of red flag laws argue that the potential for abuse is too high and that punishing people for crimes not yet committed is unconstitutional. As we have noted, the use of TPOs and other court orders to prevent crimes that have not yet occurred has a long legal history in the US, but the risk of abuse by people on the other side who see any use of guns as crazy and illegitimate is a very real concern. Any law supported by conservatives should contain strong protections for gun owners to prevent removal of guns for false reasons. A speedy appeals process is also a must.

Opponents point to a tragedy in Maryland last year as an example of why red flag laws are bad. Police served a red flag order to a man who came to the door with his gun when officers arrived at 5 a.m. Police say the man initially put the gun down but then “became irate” and picked it back up. The officers tried to disarm him, but the man fired the gun. At that point, one of the officers shot and killed the gun owner. The protective order against the man was requested by a family member, but the reason is not known.

This case is a gray area. The man would not have died that morning if the red flag order had not been served, but his reaction lends credence to the family member’s claim that he was dangerous. If he hadn’t died that morning, it is not difficult to believe that a man who would pull a gun on two police officers would have killed someone else.

“If you look at this morning’s outcome, it’s tough for us to say ‘Well, what did we prevent?’” Chief Timothy Altomare told the Capital Gazette. “Because we don’t know what we prevented or could’ve prevented. What would’ve happened if we didn’t go there at 5 a.m.?”

Maryland’s law was signed by Republican Gov. Larry Hogan in 2018. Per the Baltimore Sun, it allows “certain family members to petition a court to forbid someone exhibiting dangerous behaviors — such as amassing weapons, making threats or planning violence — from possessing or buying guns. A judge generally decides on a short-term emergency petition and a longer-term petition, usually lasting no more than a year.”

Such a law would likely have been effective at preventing the Parkland school shooting. The shooter in the 2018 massacre had a long record of problems with police and schools, including violent and suicidal behavior. Nevertheless, he legally bought the gun that he used to kill 17 people.

Opponents also argue that red flag laws are part of a slippery slope to more gun regulations and bans. It is possible that the opposite is true, however. If red flag laws prove effective at reducing spree shootings, they may actually reduce the public clamor for more gun control. Even before the most recent spate of massacres, voters were strongly in favor of legislation to keep guns out the hands of homicidal individuals. A Washington Post poll from April found that 85 percent of voters, including 84 percent of Republicans, support a law that would “take guns away from people who have been found by a judge to be a danger to themselves or others.”

Ironically, many of the people who are staunchly opposed to red flag laws were quiet when the Trump Administration unilaterally banned bump stacks with a bureaucratic redefinition of the law. The bump stock ban is likely to have no discernible effect on crime and became law without congressional action. This is a much bigger Second Amendment threat than Congress acting to target a small percentage of gun owners with violent histories.

When it comes to spree killings, America has a problem. There is no one answer, but improving background to include information on people who have dangerous mental health problems and identifying people who are known to their friends and family to be dangerous seem to be good ideas, but the devil is in the details. We may also need to revisit involuntary commitment laws.

These measures are popular with voters and have minimal effect on gun owners who do not exhibit threatening behavior. A law that specifically targets homicidal and threatening individuals may be the most narrowly defined gun control ever devised.

As with many of my conservative colleagues, I remain skeptical of the left’s intent and trustworthiness on the issue, but that is not an excuse for doing nothing in the face of a growing national concern. If conservatives write a narrow law and include adequate protections for gun owners, the threat to the Second Amendment after the law’s passage might well be lower than it is today.

All this week, I’ve put out a call on social media for alternatives. While there is definitely a place for things like expanded carry rights so that good guys with guns are more likely to be on the scene when a bad guy opens fire, so far no one has come up with a better and more realistic plan to prevent homicidal maniacs from opening fire in the first place. If you have such an alternative, I’d be glad to hear it.

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