After a handful of mass shootings over the summer, Congress is returning to session flush with the need to act on gun violence. Unfortunately, consensus appears to be forming around proposals that are both ineffective and constitutionally suspect.
I’m talking about federal “red flag” legislation, which would allow family members and friends to report on individuals whose behavior they find concerning, so that the government could then confiscate their guns before they become a threat to others.
A decade ago, the notion of a red flag law—which punishes individuals who have committed no crime; just those suspected of having the potential to commit one—was limited to dystopian movies like “Minority Report.”
But in the Democrat-led House and Republican-led Senate, the idea is gaining traction. Red flag laws have support from most Democrats, and some key Republicans.
Red flag laws present some critical problems, however—first and foremost, that they are ineffective at addressing the problem they purport to solve: reducing homicide by firearm.
And there are the more insidious elements of the proposal, the parts that threaten due process and actually put more individuals in danger, not fewer.
Understanding Red Flag Laws
As is often the case in highly charged debates over guns in America, federal politicians seem to think state and municipal laws don’t exist. But, particularly in the case of red flag laws, they do. Seventeen states and the District of Columbia have passed some form of red flag law.
While they all vary, the general thrust is the ability for police, family members, neighbors, romantic partners, teachers, or therapists who fear that a gun owner has become dangerous to file a seizure warrant for that person’s weapons with a judge.
In an initial hearing—very often without the gun owner present to defend himself—a judge decides if the firearms should be confiscated. If the court approves the seizure and the guns are collected, the judge then schedules a second hearing several weeks later, at which time the judge determines whether or not the guns should be returned or remain in law enforcement custody.
Context here is vital. Keep in mind that federal law already prohibits individuals from owning firearms if they have been convicted of a felony, a domestic-violence misdemeanor, have an active restraining order against them, or have been committed to a mental health institution.
All 50 states also have civil commitment laws on the books, which allow friends and family to petition a court for emergency hospitalization or detention, subject to a hearing where the named individual is present and entitled to legal counsel (unlike many red flag laws, where the hearings take place ex parte, or without the accused present, and oftentimes, not even notified).
The Use and Abuse of Red Flag Laws
Red flag laws distill down to a simple concept: the power of the government to remove someone’s weapons based on third party allegations—usually without that person present to tell his side of the story. It’s not surprising, then, that red flag claims get it wrong. A lot.
In Florida, a case of mistaken identity meant that Jonathan Carpenter had his weapons seized and his concealed-carry permit suspended. Despite the fact that Carpenter was innocent, and it was the government’s mistake, he still had to pay thousands of dollars to get his weapons back and his concealed-carry permit reinstated.
In Maryland, police showed up at 5:17 a.m. to the home of Gary J. Willis, and announced that they had come to take his guns. Willis had been given no notice that the state’s red flag law and been used against him. After arguing with police, he was shot to death.
With good reason, law enforcement officers in Colorado have also speculated that the enforcement of red flag laws puts police themselves at risk. A growing number of counties and sheriffs’ offices have said they will not enforce Colorado’s red flag law. Elected sheriffs around the country are taking similar positions.
Red Flag Laws Don’t Work
Gun control advocates are spending a lot of time and energy to pass red flag laws without acknowledging that the data suggest they are largely ineffective at actually reducing homicides.
Two Yale-trained researchers recently dug into this question, reviewing 22 unique gun policies across the country. Although mental health reporting laws were found to be “weakly associated with lower suicide rates,” their research uncovered “no correlation with homicide rates.”
John Lott and Carlisle Moody found similar results in a fixed regression model for all 50 states and the District of Columbia. “Red flag laws had no significant effect on murder, suicide, the number of people killed in mass public shootings, robbery, aggravated assault, or burglary,” they reported. However, “there is some evidence that rape rates rise.”
In spite of the evidence, red flag advocates continue to make the case that previous shootings could have been prevented by red flag laws. Meanwhile real-world examples don’t bear this out.
The case of Parkland, Florida, is a frequently-cited example as a justification for red flag laws (indeed, the state of Florida passed its red flag law shortly after). But the Parkland shooter could have been stopped by any number of existing state laws. He was not. Police visited his house nearly two-dozen times prior to the shooting. As Gun Owners of America’s Michael Hammond put it recently,
Each time, however, the family defended the murderer’s emotional state to authorities during the dozens of times he was investigated prior to the shooting. So given the family’s defense of this troubled youth, why would anyone think they would have reported him to police under a “red flag” law?
“Arresting the guns” versus “arresting the perpetrators.” The former still leaves the bad guy on the street where he can steal weapons to commit his crime. This is exactly what the Sandy Hook shooter did. And it’s exactly what an Illinois man did this month—police confiscated his guns, but then he simply used a samurai sword to kill his mother.
Arresting the gun doesn’t matter if the perpetrator is still free to commit violence. It’s another reason why red flag laws are a fundamentally unserious effort at preventing harm to anyone. If you really want to stop a person from committing violence, taking away the gun, but leaving him or her with access to knives, vehicles, gasoline, and every other sort of mechanism for assault makes no sense.
The States are Already Acting
Red flag laws are not the panacea to gun violence in America that advocates claim they are. But this does not change the fact that gun violence does happen, and it’s a growing problem too tragic and too deadly to ignore.
So what is to be done? This issue is far more complex than simple access to firearms. As leading conservatives have pointed out, modern culture and its attendant alienation and existential rootlessness has created a disaffection in younger Americans—particularly young men. This cannot be fixed by simple-minded legislation.
Many states and municipalities have already enacted their own measures, including laws regarding background checks, licensing regulations, and storage laws. In addition, many of these rules, like requiring background checks for every retail purchase, are already established at the federal level. But states and municipalities have a thicket of other regulations that best mirror the culture and needs of their communities.
It’s often not reflected in our national debate, but regional differences when it comes to guns are significant. Montana’s gun laws, where hunting and ranching are common, would necessarily be different from laws in urbanized Southern California.
When Representative Alexandria Ocasio-Cortez (D-N.Y.) was aghast on Twitter that her Texas colleague, Dan Crenshaw (R-Texas) lent guns to his friends for hunting and self-defense, she was failing to acknowledge that just several hundred miles north in her own state, where I grew up, residents swap hunting rifles all the time.
While there is an understandable need among lawmakers to “do something,” the rush to regulate should be tempered by faith in a federalism that best balances state culture with the enumerated rights that are the birthright of all Americans.