Can We Make Red Flag Laws Work?

Why they don’t obviate the need to make hard choices about guns.

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The horrific murder of 19 children and two teachers at an elementary school in Uvalde, Texas, has brought guns back to the public debate. One side renews its demands for national legislators to do something to tamp down on gun violence. The other insists on the importance of Second Amendment rights, and claims the answer is more guns, not fewer.

Amid this dispute, a small but vocal group is pushing for a policy it sees as a détente in America’s never-ending war over guns: red flag laws. 

Also sometimes called “Gun Violence Restraining Orders” or “Extreme Risk Protection Orders,” red flag laws allow a court to temporarily seize a person’s guns if he poses a threat to himself or others. Nineteen states and the District of Columbia currently have some form of the provision, and incentives for more states to pass them are under discussion in Congress.

In theory, red flag laws can resolve the impossible conflict between America’s high rates of gun violence and the Second Amendment’s strong protection of the right to keep and bear arms. By only targeting those individuals whom a court decides need to be temporarily relieved of weapons, they reduce the risk of violence while protecting the overwhelming majority of law-abiding gun owners.

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  1. Avatar photo
    Ben Connelly

    A very interesting response to David French. It might be worth getting Charles onto a future Dispatch Live for a debate between the two of them. Both make good points and I’d be interested in seeing where such a debate might go.

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    JDW

    I like that The Dispatch puts on a variety of views on this issue. I think this author would say without reservation that things can't stay as they are even if that means more gun control. I don't think that is obviously true. I think we should relentlessly seek solutions but just like cars kill so many people yet we keep them, guns may be worth the cost. At least that is a tenable position. If you remove all illegal guns used by those killing most of what remains is suicide and the random shooter.

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  3. Duane Truitt

    Red flag laws are a fraud - a silly attempt to arrest people and deprive them of their Second Amendment rights, not for committing an actual crime, but because they MIGHT commit a crime. And they only work by also depriving citizens of their right to due process subject to actual probable cause under the 14th amendment and their 4th Amendment right to be secure in their persons and property and effects without a proper warrant showing probable cause and not mere speculation.

    As SCOTUS justices are find of asking, what is the limiting principle for any law depriving persons of their rights? Can someone anonymously assert that a personal enemy or competitor in or former spouse is “too crazy” to have a firearm? If someone is red flagged, is that a public record that might forever kill their career aspirations, even just let them hold onto a job, or custody of a child, or assets in a divorce, or position in a civil lawsuit? Can such a declaration be expunged if found to be untrue? Where does an accused go to recover their reputation? All because a judge thinks they might do something they have not actually done?

    There are no magic bullets to prevent mass shooters who are all psychopaths. Killers have many means at their disposal to do their dirty deeds. If they are smart enough to plan and carry out a mass shooting they are probably also smart enough to avoid tripping any red flag law triggers.

    The gun controllers and red flaggers would have America nullify the world’s finest national constitution, all based upon entirely fallacious theories of how a perfect, non-existent world would work in their fevered imaginations.

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  4. Avatar photo
    DougAz

    So I have some questions and experience on this.
    First, it takes an EXTREME situation I believe for a family member to go obtain a Judical order. I think the weak-link in the loop of Red Flag laws is their reliance on family and friends to essentially take specific actions beyond just a phone call, to get law enforcement to move and sieze a family or friends weapons. You have a big HURDLE to cross emotionally.

    When the emotional pre-shooter is in the development stage of their anger, a priori judgment is needed. It's hard and by itself a major life turning point. Totally worth it to prevent a suicide or a mass shooting.

    However, aren't Red Flag laws actually unnecessary and redundant to laws that already allow for calling the police, obtaining retraining orders, parents just removing, ,locking up, discarding family guns?

    How can expect the gu enthusiast parent who will not remove the guns safely from their children, the turn around and ask a Judge..extra work ...to ask the police...to finally (time delays here) to come into their own home and then..actually do what they themselves refused ti do???? It's a bridge to far to rely upon.

    Now. Personal experience. My wife was staying with her father after his wife (her mother) passed away. Father was born 1st gen in America 1915. Rural NJ. Grew up in the old gun culture (hunt and home). Good man. CCC corps in the 30s. WW2 Pacific and landed on 2 Japanese controlled islands in the Marshalls. Had PTSD.

    One night he goes out of control in despair. He goes and gets his M1 Garand and looks for ammo he can't find. Becomes angry, depressed, highly agitated. Had lost his best friend and wife of 75 years.

    My wife became extremely afraid of him that night. She didn't use a Red Flag in NJ in 2005. She called the police. They came. Took his guns. She called her brother. And she left then. Saw him next at his funeral after a quiet passing.

    So. Red Flag laws as I see it are
    A. Redundant to laws that allow preventing suicide and immediate harm.
    B. Red Flag laws require extra actions by family members beyond picking up the phone to police
    C. Require extraordinary judgment , decision making and action taking... when in many of these situations with Parents....they don't remove the source (gun) of potential harm themselves. A far more expeditious and easier step to reducing harm risk.

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  5. Avatar photo
    Robert Knudson

    I don't view red flag laws as a panacea, and I am sure that some abuses will occur. We are governed by men and not by angels, just as we are not angels ourselves.
    This stated I would be interested in data on the percentage of politicians who oppose red flag laws but support no knock warrants and hear their reasoning on this topic.
    FWIW I see the potential for abuse of restraining orders as well, but am not aware of a broad movement to abolish them...

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  6. Avatar photo
    Robert Knudson

    I don't view red flag laws as a panacea, and I am sure that some abuses will occur. We are governed by men and not by angels, just as we are not angels ourselves.
    This stated I would be interested in data on the percentage of politicians who oppose red flag laws but support no knock warrants and hear their reasoning on this topic.
    FWIW I see the potential for abuse of restraining orders as well, but am not aware of a broad movement to abolish them...

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  7. Avatar photo
    Frank Lee

    The problem with national red flag laws is that the American Democrats have transparently shown us that they will pursue any abuse of power they think they can get away with for the benefit of their politics. So Democrats can just accuse all people not supporting Democrat politics as being insane and take their guns. With Democrats all means justify their end of political power. So no... there is no way to make red flag laws work at the national level. States will have to do their own thing.

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    1. Fudrock

      This post is exhausting and reductive, as if Democrats and Republicans aren’t two sides of the same grimy coin, each pursuing maximalist policies at the behest of their base, and seeking to skewer each other at every turn. I expect that of politicians; they screw each other over for sport. They all feast on power, fleeting as it is, engorging themselves in two year cycles, as the pendulum swings violently in the opposite direction: the incumbent party doubtlessly deserving to lose, but the out party not exactly deserving to win.

      Hate Democrats all you want; that’s your prerogative, but it’s a lazy one.

      All that said, you are making an indictment of the Democratic constituency at large, and while a vocal minority would like to see guns removed from the equation entirely, they are a minority and an unrealistic one at that. Many Democrats own guns. According 2017 Pew study 16% of registered Dems and 20% Lean Dem, disregarding those that live with a gun, but don’t actively own it; I suspect in the wake of 2020 that both numbers have increased. It’s fascinating on a ton of levels (Urban/rural divides; regional distinctions) and I encourage to look at it: https://www.pewresearch.org/social-trends/2017/06/22/the-demographics-of-gun-ownership/

      That said, controlling for other factors, 36% of an electorate that leans left in all, but the most solid blue municipalities is a pretty healthy bulwark against extreme policy prescriptions. As evidenced by expanded background checks failing to pass a referendum in Maine. In other words, this is a perfect base issue, speak loudly and forcefully in favor of policy prescriptions that can’t possibly pass (but seem necessary in a vacuum), feel vindicated, motivated, and morally justified, because X number of people died in the most gruesome way imaginable. It’s not disingenuous, either; I’m still upset that those kids were killed, and the grocery shoppers, and Waffle House customers, and churchgoers, and concert fans. It’s just not going to move the needle on confiscation of guns.

      The rest, like anything, is a continuum, and I fall somewhere in the middle, like most Americans, and I still feel beset on all sides by people who are fundamentally unreasonable.

      So, no, I don’t think a national red flag law would be an invitation to Democrats to deem every Republican gun owner crazy and take their guns, but it would ensure that Tennessee, where I live and where a Red Flag Law has already died in the legislature constitutional carry has subsequently passed, is obliged to enforce laws that, through sufficient due process, keep guns from people who should not own them if only for a little while. Instead, we get an EO for active shooter training for police, more safety inspections in schools, and pamphlets for parents.

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      1. Avatar photo
        Frank Lee

        The ministry of truth is apparently in DHS. The Biden Admin has made many statements and taken many actions that clearly prove that they will abuse power to attack their political opponents. Question the data and policy on the next "health emergency" or any other emergency, and the MOT will simply brand you as unstable and Justice will tell DHS to come take your guns. We have seen this is other states. Florida for example. An upset ex-wife calls in that her ex-husband is crazy and has guns. The police come take the guns.

        It is really all unconstitutional because of the requirement for Due Process.

        The problem with Red Flag Laws are Democrats in power. Everyone knows this... even Democrat voters. That is why Maine rejected it.

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        1. Fudrock

          You have more faith in the competency of Democrats than I do, and I generally caucus with them, particularly these days, when the Republican elected officials, particularly in the state houses, seem to be few cards short of a full deck. I trust we disagree on this. (Who is this “everybody” you speak of?)

          Also, I don’t see the many disparate agencies under the umbrella of DHS (the Coast Guard, TSA, Custom and Border Control) suddenly pivoting to take away guns at the behest of the Justice Department, but I suppose weirder things have happened. DHS is a thing, after all.

          If it’s as you describe then it’s clearly unconstitutional, and it wouldn’t hold up in court. But, and caveats to Federalism, it not as you describe in either Florida or Maine. Some steps are left out.

          Concerned citizens make an appeal to the police, who need to gather credible evidence of that the gun owner in question poses an imminent threat to themselves or others, and request that they file a sworn affidavit. Police officers then make the petition to the judge (and in Maine, that judge’s order needs to be backed by a mental health professional). Because of the potential imminence of the threat, speed is paramount, provided that the order is granted. Due process is similarly deferred in child custody dispute that puts the child’s life in danger. Depending on state law, the firearms are held for a probationary period (in the case of FL, a maximum of 14 days), where upon it’s subject to appeal by the accused and further adjudication. At that point, the judge has the right to withhold the guns for up to one year if the threat remains credible.

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          1. Avatar photo
            Frank Lee

            "Republican elected officials, particularly in the state houses, seem to be few cards short of a full deck."

            I see things differently there. Government by the people, of the people and for the people. Who are the people? Are they all Ivy League educated attorneys that worked for McKinsey? No.

            Frankly, in my career, I have dominated those types. They are generally more myopic thinkers that lack self awareness and lack humility. They develop so many blind-spots and make many mistakes in judgement. They can talk well, but fail to deliver results from execution.

            "Concerned citizens make an appeal to the police, who need to gather credible evidence of that the gun owner in question poses an imminent threat to themselves or others, and request that they file a sworn affidavit."

            That is not the way it works in practice. Red flag laws give law enforcement emergency justification to act on complaints. This is the method of totalitarians... declare the action an emergency to circumvent due process and regular legal protocol.

            Liberals too need to think a bit more deeply about the ramifications of this type of approach. If they can take your guns, they can take your property. So they can take other property. It is a slippery slope that our founders knew about and made sure was prevented within our founding documents. They delineate these rights to not have your property confiscated as natural rights... God-given rights.

            We might agree to allow this for guns only if we could trust our politicians and law enforcement with that awesome power. However, the evidence is clear today that we cannot. That power will be abused.

            Here is an example...

            https://www.theblaze.com/news/eric-swalwell-says-red-flag-laws-should-be-used-against-ben-shapiro-over-his-lgbt-views

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  8. Mathew A

    I don't think this is the big issue you are making it out to be. Yes there are always trade offs but most of us seem to think this is a reasonable one.

    If you are talking about killing yourself or a bunch of other people you can have your rights "temporarily" curtailed. As long as there are proper protections to prevent abuse, this is WAY better than impacting the 99.999% of law abiding gun owners.

    I would also submit that these types of changes probably take time. The general population has to know these types of laws are on the books and be aware of how to activate them. Same applies to law enforcement. There's thousands of laws, law enforcement needs to be aware of the ability to apply these.

    Just like any change, that will require active management. Something government often fails at (see FDA)

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    1. Avatar photo
      JDW

      I agree. As long as there are proper due process requirements for maintaining such an order, I think it is fine. Far better than doing something that affects the vast majority of good gun owners.

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      1. Mathew A

        Yep that's key.

        Along with punishments for false reporting, or abusive reporting

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  9. Avatar photo
    Andy Napoli

    Red Flag laws aren't a panacea. They're supposed to function as one layer in a composite response. I'd argue that the main missing link is getting mental health data loaded-at scale-- into the NICS database.

    Anybody who's ever had an inpatient mental health admission into a hospital or mental health facility should be "flagged" in NICS. Anybody with certain mental health diagnoses that statistically correlate to suicide, should be flagged in NICS. Anybody with a current prescription for certain mental health medications, should get flagged in NICS.

    Anybody who gets involuntarily committed should automatic have a red flag law restraining order placed against them. It should be a standard part of the paperwork filled out.

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  10. Jeff

    How are Red Flag laws not the 2A equivalent of Prior Restraint in the 1A.

    Would anyone accept the ability to block publication of something because it might be, for example, defamatory?

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