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
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
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
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.