After last weekend’s horrible mass shootings, we’re hearing the usual cries from the left for stricter gun control — but this time we’re also hearing them from increasing numbers of Republican lawmakers willing to embrace “red flag” legislation.
Time reports that a bipartisan proposal to create a federal grant encouraging the adoption of state-level red flag laws is “gaining momentum” in the Senate. President Trump gave the bill a push on Monday, telling the nation in a prepared address, “We must make sure that those judged to pose a grave risk to public safety do not have access to firearms and that if they do those firearms can be taken through rapid due process.” GOP co-sponsor Lindsey Graham (South Carolina) said that red flag laws will allow law enforcement to “do something” about potentially dangerous gun owners or would-be buyers.
Senate Majority Leader Mitch McConnell has made the Senate the place where Democrat gun control bills from the House go to die, but even he seems at least somewhat open to new legislation. In a statement released earlier this week, McConnell said that “serious, bipartisan, bicameral efforts will enable us to continue this important work.”
In Wisconsin, Republican Assembly Speaker Robin Vos and GOP Senate Majority Leader Scott Fitzgerald are prepared to meet next week with Democratic Governor Tony Evers to discuss new legislation to do something about “people perceived as threats,” as the AP reported it. Although Vos did go on Twitter to promise that he “will not entertain proposals to take away Second Amendment rights or due process.”
Illinois GOP congressman and Iraq War vet Adam Kinzinger wrote on Medium this week that he will support red-flag legislation, raising the age limit for firearms purchases to 21, and “banning certain high capacity magazines, like the 100-round drum the Dayton shooter used this weekend.”
Republican Senator Pat Toomey of Pennsylvania is working with West Virginia Democrat Joe Manchin on new legislation that he claims will “keep guns out of the hands of criminals, the dangerously mentally ill, and terrorists, while respecting the Second Amendment rights of law-abiding gun owners and all Americans.” He added that he hopes “the accumulated pain from so many of these horrific experiences will be motivation to do something.”
Influential Republican Iowa Senator Chuck Grassley told audience members at a fundraiser on Monday night, “I’m calling on law-abiding gun owners to lead the charge in the effort to keep dangerous individuals from purchasing guns and to expand access to mental health resources.”
Dayton-area GOP Congressman Mike Turner says he “will support legislation that prevents the sale of military-style weapons to civilians, a magazine limit, and red-flag legislation,” which is about as comprehensive a list of measures as any anti-gun Democrat might call for. Ohio’s Republican Lt Gov. Jon Husted said he hopes that seeing “bullet holes and the blood stains” will move Trump to support new gun control measures. And Ohio Senator Rob Portman says he hopes for a “consensus” on the red flag legislation he now supports. Also in Ohio, Gov. Mike DeWine was “shouted down” by mourners in Dayton, with the demand that he “do something.” Two days later, DeWine told reporters, “They were absolutely right. We must do something, and that is exactly what we are going to do.”
Do… something… exact.
Not a whole lot of sense is being made here, which is typical for lawmakers responding to a crisis. And while red flag laws have been passed in 17 states and the District of Columbia, how effective — or constitutional — are they?
Writing for The Federalist today, talk radio host Dana Loesch warned:
The people who report your Twitter account and your Facebook pages because they dislike your opinion want you to trust a government-run system where people can, without serious penalty of law, report you and have your property confiscated before you’re allowed to defend yourself in court weeks, even months, later.
Politicians refer to law-abiding, gun-owning Americans as “domestic security threats,” yet want you to trust them with implementing such a system. I’m talking about red flag laws and the risk they pose to due process—you know, those other rights after the Second Amendment in the Constitution.
Loesch also reminds readers that existing laws to keep firearms out of a madman’s hand failed to do anything to prevent equally horrible shootings in Parkland and elsewhere, due to lax oversight or enforcement.
Michael Hammond, Legislative Counsel for Gun Owners of America, wrote last year on red flag laws that “the standard [for taking someone’s guns away] is some subjective determination about whether the owner represents some ‘danger.'” And what happens next?
After a fixed period of time — say, 21 days — the gun owner can ask for a court hearing to restore his or her constitutional rights. But guess what? Few gun owners have the sophistication or the thousands of dollars it would take to hire a lawyer and expert witnesses. And few courts are willing to second-guess themselves and reverse the Gun Confiscation Order which has been issued.
In fact, hundreds of thousands of veterans have lost their gun rights without due process pursuant to a comparable procedure. And recent revelations from the VA suggest that fewer than 50 have successfully invoked this “process” to get their rights back.
If we were to think of red flag laws as something akin to civil forfeiture, where the police can take your property without due process or recompense, just because they thought you look funny, we might be closer to the truth of how they work.
What I do know for sure is that legislation passed in a rush in the heat of a crisis is rarely good legislation. Exhibit A would be the PATRIOT Act of 2001, pushed through in the heated days after the 9/11 terror attacks. Reason’s Jacob Sullum memorably described it as “a grab bag of legal changes that law enforcement and intelligence agencies had been seeking for years,” including the wasteful and exploitative TSA, and an expansion of powers for the constitutionally-questionable FISA courts.
While there might be acceptable legal solutions to the increasing problem of deranged lone-wolf shooters, it doesn’t seem likely we’ll find them in the heat of the moment.