Analysis of the gun control “deal” Senate Republicans and Democrats struck last week will focus on the so-called red-flag laws that have become flavor of the week favorites of politicians and gun control activists.
Red-flag laws sound good in concept. Who would disagree with the wisdom of disarming those in the midst of a psychic break or mentally unhinged as to represent an immediate threat to themselves or others? As always, however, the devil lurks in the details. What about due process? What sort of threat justifies suspending one’s rights even temporarily?
Who gets to determine whether an individual is dangerous enough? Red-flag laws can be easily abused by those who get to decide who represents a real danger. How will this law avoid the fact that laws such as these will almost inevitably cast a wider and more dangerous net than originally intended? What remedies exist to avoid or at least minimize such abuse? What happens when the crisis triggering the “temporary” seizure of one’s firearms has passed?
When such proposals were first gaining popularity, I was asked as an NRA officer if there were any circumstances where the NRA or other pro-Second Amendment organizations could support such a law. A proposal designed narrowly enough to accomplish its goal and incapable of being abused by those administering it might well win approval, but I warned that the concerns above had to be addressed satisfactorily and any such law would have to include real due process protection.
The advocates of these various proposals since have since largely ignored these fundamental questions. During the Obama years, some states including Maryland considered adopting red flag laws that would allow virtually anyone to call police on someone they considered a “danger” and empower the police to confiscate the accused’s guns without anything resembling due process. Nineteen states and the District of Columbia have since enacted red-flag laws, or what they call “Gun Violence Restraining Orders.” Some are better than others, but none are perfect. Too many people under many of these laws can force police action, although most local authorities seem to have acted with restraint thus far.
Laws adopted by individual states from California to Florida to Indiana are enforced at the state and local levels. President Biden and Congressional Democrats want a federal one-size-fits-all law enforceable in the federal courts and executed by federal law enforcement officials. Fortunately, Senate Republicans forced Democrats to abandon this approach or even a nationwide mandate requiring states to pass such laws in favor of financial incentives to “encourage” them to do so. A few more states might, but many of those who don’t have them now aren’t likely to do so.
What’s more, even though 20 senators have signed on to “a framework,” the legislative language on which the Senate will eventually have to vote has yet to be written. A top Senate aide told Politico, “One of these principles could be dropped if text is not agreed to.” Gun owners, Second Amendment supporters and those who represent them must insist that any “text” that is agreed to must answer the questions above in an acceptable way. If not, the text and the framework should be scuttled.
Most states can already temporarily detain or disarm anyone deemed dangerous. As in so many instances, new laws would not be necessary if existing laws already on the books were fairly and uniformly enforced. The same can be said about the “framework” agreement to toughen laws against “straw purchasers” buying firearms for others. This is already illegal and is one of the least enforced of all firearms laws; enhancing it will do little other than allow politicians to say they’ve done “something.”
Democrats also wanted to outlaw anyone under 21 from buying a gun. That is off the table and the compromise “framework” would instead somehow allow background checks to include sealed mental health and juvenile criminal records for younger potential purchasers. This may make some sense as most school shooters fall into this category, and a few may have been prohibited from legally acquiring a gun if this could be done now. Getting the states to agree to allow access to these records, however, is likely to be far more difficult than anyone suspects. Not only do state requirements limiting access to such information vary widely, but the proposal will stir up juvenile rights advocates and mental health advocates along with their elected allies.
Still, the belated recognition by Congress of the importance of enhanced school security and the way in which a flawed mental health system has allowed those who even under existing law shouldn’t have access to firearms is good news. Senate Republicans didn’t do badly in getting Democrats to take some really bad ideas off the table and the substance of what they agreed to in principle isn’t all that bad, but slippery slopes are dangerous places to be and opening the door to far worse restrictions if a package based on the agreement makes it to the floor could prove disastrous.
These Senators have not “sold out” gun owners — yet — but they have put them in real danger. They will be judged by millions of gun-friendly voters on whether what makes it to the Senate floor meets the concerns of gun owners and whether they make it clear that they will oppose any additional restrictions. If they don’t, they will have abandoned their principles to stand before the cameras with their anti-gun colleagues to claim they’ve “done something.”
• David Keene is editor-at-large at The Washington Times.