Red flag laws may be a tool to prevent some mass shootings.
I assume we're all aware of the sickening shooting incident yesterday at an elementary school in Uvalde, TX. I have a hard time dwelling on it without tearing up.
President Biden addressed the nation yesterday evening. As happens from time to time, he expressed himself emotionally: "Where in God's name is our backbone to have the courage to deal with it and stand up to the lobbies?"
I would imagine that all of us can sympathize with the impatience of the president and others who point out (correctly in my opinion) that, if these assailants weren't armed, they would not be able to shoot innocents.
But with respect to the president, and allowing for his emotional reaction to this situation, I'm not sure he has this exactly right. I don't think it is a lack of courage or resolve on the part of Americans which prevents us from taking practical measures to curtail mass shootings.
How do we disarm assailants before they attack? The 2nd Amendment and its associated case law prohibits the sort of large-scale disarmament of Americans which would otherwise make intuitive sense to many of us.
Even if the 2nd Amendment was to be amended or repealed (and conceptually, I could support either measure), the practical difficulties of disarming a country of several hundred million people, among whom several hundred million firearms already are in circulation, would be daunting - perhaps even insurmountable.
In the wake of Uvalde, David French has come forward with what may be the most practical idea I've heard so far. It is called a Red Flag Law.
French is a political commentator, now with The Dispatch and The Atlantic. He formerly worked as an advocacy attorney. He has argued a number of cases before the Supreme Court. He also is a supporter of Second Amendment rights. I don't think he would support a program of mass disarmament.
But at The Dispatch, he makes a persuasive case for red flag laws. French starts by making some good distinctions about different types of incidents in which guns are used:
To understand the need for red flag laws, it’s important to back up and understand the different categories of American gun deaths and the tools we have to defeat gun violence. The first category is what one might call common crime. Think of gang violence. Think of domestic violence. The majority of our meaningful gun control laws are aimed at common crime. We prohibit felons from possessing guns. We prevent “straw” purchases (when one person buys for someone who’s legally prohibited from owning a gun). We escalate punishment when criminals use guns to commit crimes.
But our nation’s gun control laws are much less effective at addressing the next two categories of gun deaths—suicides and mass killings. Enormous numbers of otherwise law-abiding citizens die by suicide using guns in this country. These are people who could pass any background check. And forms of gun control aimed at limiting a weapon’s lethality (such as restrictions on magazine size) are irrelevant to the suicide crisis. This is where our nation’s strained mental health system most shows its flaws.
Mass killings are their own thing. Mass shooters are frequently law-abiding, right up until the moment when they commit mass murder. Mass shootings are often meticulously planned, which means that they can circumvent common gun control laws. For example, the Buffalo shooter legally purchased the weapon he used and then illegally modified it to make it more lethal.
To illustrate the pertinence of this distinction between common crime measures and mass shooting measures, French notes that, in 2015, Washington Post fact-checker Glenn Kessler fact-checked a claim by Florida GOP senator Marco Rubio that banning assault weapons and magazine expansion would not have prevented certain then-recent mass shootings - and found Rubio's claim to be true.
French then proposes that red flag laws be implemented:
The idea is simple—if a person exhibits behavior indicating that they might be a threat to themselves or others (such as suicidal ideation or violent fantasies), a member of his family, a school official, or a police officer can go to court to secure an order that permits police to seize his weapons and prohibit him from purchasing any additional weapons so long as the order lasts.
A well-drafted red flag law should contain abundant procedural safeguards, including imposing a burden of proof on the petitioner, hearing requirements, and a default expiration date unless the order is renewed through a clear showing of continued need. But its potential effectiveness (unlike the gun control measures Kessler analyzed in 2015) is crystal clear.
I think of a red flag law as a sort of gun-ownership and gun-possession restraining order, applied to persons who have shown specific "red flags" as posing a potential danger.
French's post also includes a chart, developed by Arizona governor Doug Ducey when his administration proposed a red flag law for his state, which lists specific shooting incidents that a red flag law may have prevented, had it been in place and had it been applied. The list includes:
- Virginia Tech
- Sandy Hook
- Parkland
- Columbine
- Umpqua Community College
Red flag laws aren't just theoretical; a number of states have them in place already. This exhibit, courtesy of Wikipedia, shows the states with them (in red) and without them (in gray) - and one state, OK, which apparently prohibits one:
We may note that New York has a red flag law in place already. French comments:
But it’s not enough just to pass a red flag law. We have to educate citizens and police about their existence and scope. Laws don’t enforce themselves. Tragically, it appears that New York’s red flag law could have stopped the Buffalo mass shooting. My friend Stephen Gutowski explained last week in The Dispatch:
The alleged shooter expressed a general desire in a school assignment to kill himself and others in June 2021. As a result, he was taken by police for a psychological evaluation and spent a day and a half in a mental hospital, according to NPR.
However, he was released and no further action was taken.
If either the police, school administrators, or his parents had filed for an ERPO, the shooter likely would have been prohibited from buying the gun he used in his attack. The shooter's clear willingness to break dozens of laws, including by illegally modifying his gun, implies he may have been willing to buy a gun illegally even if subject to an ERPO. But making his acquisition of a gun more difficult very well could have prevented the attack.
Thus, red flag laws aren't an all-encompassing remedy; as with mandated-reporting laws, they only work if those responsible for reporting concerns will take the necessary preventative actions.
But red flag laws strike me as one piece of the puzzle. They pass Constitutional muster, and they provide the means to disarm persons who have shown specific behaviors which may constitute a threat. In my view, we should support getting them in place in all 50 states. And as we do with mandated-reporter laws, we should provide training to teachers, police, social workers, school counselors and others in a position to identify troubling behavior.
Ban private ownership of assault weapons, collect and drsteoy weapons, intercept individuals known for violent ideation, Medicare psychological help for everyone. No one thing will work but several things might make a dent like fighting COVID. And they change the atmosphere over a period of time. But I don't think it will make up for the nasty atmosphere caused by economic insecurity and overbearing capitalist entities. In the Hackensack Hospital recently, a traveling nurse mutilated another nurse with a torch, fled and committed suicide a day later. Everybody is a little crazier and so are the crazies. In my opinion, the dissolution of religious belief is no help either. I think the fact that we are in a flailing collapsing empire plays a big part.
ReplyDeleteIs it the dissolution of religious belief? Or the type of religious belief that is the problem? In my area we have a lot of Catholics, and a lot of fundiegelicals of the non-mainstream denomination persuasion. They are saturated in persecution narratives that make gun ownership for protection against the government look very attractive.
DeleteOops! Meant to draw a distinction between the Catholics and the fundigelical, not lump them together. Don't know any of our Catholic neighbors who own assault rifles or who aren't responsible hunters!
DeleteOther countries have legal gun ownership and they also have rational gun control. The number of school shootings range from 0-8 since 2009. In the US there have been 288 in the same time period. A Twitter post has a graphic
ReplyDeletehttps://twitter.com/Tamster_D/status/1529237508613189632
Other countries don't have a Constitutional right to gun ownership.
DeleteAs bad as the abortion controversy is, if Roe vs Wade goes down it is unlikely to start a civil war. If they tried to repeal the 2nd amendment I think it would. People are that passionate about it. "My body, my trigger finger on my AK-47" or something like that
DeleteJim, I know you are busy. But take the time to learn the facts. Most of the countries on the list DO allow gun ownership, even Russia. I assume that China does not. But these countries have rational gun regulations. We have none. States that regulate guns aren’t protected because people just go to a neighboring state to buy them. New York has a red flag law, but it didn’t work in Buffalo because the language is too narrow. See WaPo
DeleteOther countries act after a mass shooting. Assault weapons were banned in Canada, New Zealand and Australia within a couple of weeks after mass shootings in recent years. I have researched this in depth. But some Americans are impervious to research - especially conservatives. Unwilling to look at FACTS. Unwilling to learn something from countries that do things better, whether it’s healthcare, education, or prevention of gun massacres.
Switzerland mandates gun ownership for adult males - if the need for a militia arises. That’s what the 2nd Amendment was for - enacted to quickly raise militias because of the lingering danger that England would keep trying to get America back. In Switzerland, training, licensing, registration are part of the process AND since the purpose is to be able to raise a militia to defend the country, the guns are stored in an armory. The guns of legitimate militias are stored in armories.
Other countries also have citizens who are mentally ill. Their healthcare systems provide treatment that most Americans, even insured, can’t get, because the numbers of sessions are sharply limited and most Americans can’t afford to pay out of pocket for the long term help they need. People in other countries hunt. They shoot for sport, have guns for defense, but the regulations dramatically reduce the odds of a mentally ill person or a criminal from getting hold of guns, especially assault weapons. They can’t celebrate their 18 th birthday by walking into a store, and walking out with assault rifles and body armor so that they can more easily shoot teachers and school kids. Or ordinary people in a synagogue, mosque, church, or grocery store. In the same 10 day period that the Buffalo and Robb elementary massacres occurred, a gunman went to a church in Laguna Woods CA and killed 7 people before he was brought down by the pastor and others tackling him. Laguna Woods is an incorporated town of over 55 adults, much of it smaller, gated neighborhoods. We were happy when my mom moved there when she retired - it is a lovely community and safe for a retired single woman. Or so we thought. She died 30 years ago, before this gun madness took over our country.
This can happen to anyone, anywhere, at any time. Imagine someone coming into your daughter’s classroom with an AR-15. Some people suggest arming teachers, or security guards. There was an armed security guard at Parkland who hid when the shooting started. Will more guns help? The teacher will be shot before she can get the gun out of her desk drawer. Then her students. That’s what happened in Texas. First the teacher, then the kids. You live in a nice, safe, upper middle class suburb. Well, Littleton CO is like that too. My brother lived there for several years. Had they stayed, their son would have gone to Columbine high school around the time of that mass shooting. Parkland high school, Sandy Hook elementary - all in nice, “safe” suburban communities like yours and mine.
The mental illness problems of the shooters aren’t the only mental aberration in this country. The gun culture of this country is sick. The millions and millions of guns that have been bought by individuals to “protect” themselves during the last 20-30 years, have clearly not helped - gun deaths, especially mass shootings, have skyrocketed since the GOP has managed to gut gun regulations. The same allegedly “pro-life” GOP politicians that the “pro-life” movement has succeeded in electing.
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DeleteP.S While Checking our reservations for this weekend - my husband's college reunion I saw something I have NEVER before seen in all of the dozens of hotels we have stayed in over the years. The Holiday Inn express at the airport.
DeleteWeapon Policy: † This hotel does not allow any guns on its premises. This prohibition includes concealed and openly carried handguns.
Please don't be a knee-jerk conservative about the 2nd Amendment who dismisses reality. The US is in very bad shape and denial doesn't help anything.
The NRA must fear 18 year olds with guns. Or maybe parents and grandparents who have had enough. They are banning all guns, ammunition etc from their convention this weekend.
DeleteAnd a brilliant conservative at The Federalist has decided that all kids should be homeschooled- to protect them from the whirlwind of gun violence that they and their allies have sown.
I need a break. I’m just way too angry right now with the GOP, and the hypocrisy of the “pro-life” movement and the politicians they support., Far more concerned about protecting an embryo the size of a blueberry or kidney bean - no brain, no nervous system, few of the biological systems that developed human beings must have - a potential child that is not yet an actual child - than they are about living, breathing children. They don’t seem to give a damn about children who have actually been born. I woke up every few hours the other night with the faces of my grandchildren in my mind, all screaming in terror while a deranged person with a gun stalks their schools . This doesn’t happen in civilized countries. I’ll be back when I’ve cooled down.
"Most of the countries on the list DO allow gun ownership"
DeleteSure. But they're not constrained as our Constitution, and its associated case law, constrains legislatures who would otherwise wish to impose more restrictions and regulations.
Virtually every example and remedy you mentioned would run afoul of the 2nd Amendment, as interpreted by the Court.
I could support any or all of those remedies. But none of them are legally possible in the United States.
Do you know what strikes me as hypocritical? All the grandstanding by politicians, from President Biden all the way down to Beto. As though, if only we got angrier, something would be done.
Getting angrier has nothing to do with it. We have two choices: (1) work within the law; or (2) work to change the law. Both are possible. But both require actual work, which is hard. It's a lot easier to fume and fulminate and play charades in front of a camera, especially when an election is coming up (NB: there is never a time when an election is not coming up).
"Weapon Policy: † This hotel does not allow any guns on its premises."
DeleteOur parish has that policy, too. It's posted on signs near the entranceways. Those signs went up when the Supreme Court struck down gun-carry restrictions in Illinois within the last 1-2 decades.
Any right has responsibilities, and restrictions can be imposed for the protection of the public. Yelling "fire" in a crowded theater isn't protected by the First Amendment. Human sacrifice isn't protected by religious freedoms.
DeleteOwning a machine gun is illegal. So why can it not be illegal to ban or severely restrict semi-automatics with large magazines that pretty much do the same job?
I realize that mouthy, virtue-signaling liberals piss you off, but if a classroom full of kids shot up so badly that they have to be identified by DNA doesn't make you want to yell at a bunch of Republicans on a dais blaming everything BUT guns, I don't know what will.
Both species piss me off.
DeleteSadly, they're in charge.
DeleteLet me evaluate this proposal from a mental health perspective.
ReplyDeleteIn the 20 years since I retired, “mental health courts” have been developed. These allow the mentally ill who have been charged with minor offences (shoplifting, loitering, boisterous behavior) to be processed by judges in conjunction with family members, and mental health professionals so that treatment becomes a court approved and enforced plea bargain in lieu of incarceration.
There is no way at any level of funding the mental health systems can have much of an impact upon the threat of violence in our society.
First, there are not enough professionals to do the job. In the course of constructing outcome measures for my local mental health board, I went through a process that allowed all parties to identify twelve outcome areas (e.g. housing, medication, hospitalization, etc.), each measured by several items that were the goals of our treatment). I then had a random sample of severely mentally disabled consumers (history of hospitalization, on disability, etc.) evaluated by clinicians who were familiar with the clients. The average consumer had very important problems in five areas. That means that even if they were in intensive case management where case managers see only ten consumers, the case workers are dealing with 50 problem areas. Most case workers would be happy to have only 30 consumers in which they would be dealing with only 150 problems at a time. There are just too many people with too many problems!
Second, we human beings are constructed to be at our best when the social situation demands it. This is well shown in the ability of dying people to appear very well for Christmas, Easter, a family birthday, etc. and then collapse and die the next day. When my father was in the hospital with lung cancer, I arranged for him to enter hospice. The hospital doctors all said he might have weeks or months to live. I responded that he had days to live. Of course, when the doctors and nurses came in Dad responded well to them. Within hours of his entering hospice, the doctor there confirmed my diagnosis and Dad dies within a few days. So mental health professions are likely to see clients at their best not their worst.
In Ohio, health officers designated by mental health boards have the legal power to “pink slip’ a consumer. For example, if a consumer came into our board office very upset and began to behave in ways that were threatening to either himself or others, we could call 911 and have the police transport him to an evaluation facility. There a psychiatrist could commit him to the hospital if he thought the consumer was a clear PRESENT danger to himself or others. However, the law is very strict, the psychiatrist has to evaluate every day the consumers PRESENT danger and can only keep him there if there is clear evidence of that danger. Otherwise, the consumer can discharge himself “against medical advice.”
We really don’t want the mental health system to become our police force of the mentally ill. Just like attorneys, priests, and doctors, mental health professions have to be able to guarantee confidentially in order to have good relationships.
The “red flag” legal process might help if it emphasizes that it the right of citizens to be protected from people who should not handle firearms. That should be judged in a court of the law that does not involve treatment professionals or judgments of clear and present danger to self or others. Rather it simply says that if you engage in certain behaviors with guns that are threatening to yourself or others a court may strip you of your right to own and use guns permanently.
Interesting thoughts, Jack. I can't see passing the gun problem off on teachers and mental health professionals. There is a lot of blaming of the school in Oxford, Mich., going on right now. Lawsuits are being filed. Istm that inadequate gun restrictions and the lack of will to impose them are the problem, not negligent schools.
Delete"The “red flag” legal process might help if it emphasizes that it the right of citizens to be protected from people who should not handle firearms. That should be judged in a court of the law that does not involve treatment professionals or judgments of clear and present danger to self or others. Rather it simply says that if you engage in certain behaviors with guns that are threatening to yourself or others a court may strip you of your right to own and use guns permanently."
DeleteAs I understand it, that's pretty close to how a red flag law would work. The one difference, I believe, is that the subject needn't engage in behaviors *with guns* in order to be brought before a judge for a red flag proceeding. It could be things posted on social media, or things said to family or friends. E.g. a threat to attack or kill someone, or an entire group, or a school full of children. A parent, a friend, a teacher or a school counselor might hear or observe these red flags. It's then up to them to initiate the process. As you note, it recognizes the right of citizens to be protected. It would have to balance that right against the rights of the person being brought before the court - including, conceptually, the legal right to own a gun. The person being brought before the court needn't be a gun owner - but if he attempts to purchase a gun, he would fail his background check.
I support gun laws and limitations on ownership. But this goes against the ingrained instincts of a conquering people. Firearms may have been needed in case the king tried to reclaim the colonies but they served their purpose in killing off the indigenous people, controlling slaves and expanding into Mexican territory. It might help if we renounced our delusions of exceptionalism and world control along with militarism and endless war. We may think we have been civilized but we are a violent, predatory country. Even gun laws will only be a bandaid on a systemic sickness.
ReplyDeleteYup. I have been toting my Winchester pump action to dealers for appraisal and possible sale. I cannot count the number of times the guys in various places have talked about it being "the gun that won the West." The people who want to buy it are the last people I want to sell it to.
DeleteOn ABC News tonight, I heard a report that TX senator John Cornyn, now back from visiting Uvalde, has been given the go-ahead by Mitch McConnell to reach out to Democrats to see if a bipartisan something-or-other can bear fruit. Don't know what, if anything, it will amount to, but maybe something will come of this tragedy.
ReplyDeleteThat is a step in the right direction, and I certainly pray they will get something done.
DeleteThis is Audrey Fahlberg and Harvest Prude in the Uphill newsletter at The Dispatch site. The link is here, but I fear it is behind a paywall:
Deletehttps://uphill.thedispatch.com/p/mass-shootings-reignite-gun-control?token=eyJ1c2VyX2lkIjo0MjgzOTk3LCJwb3N0X2lkIjo1NjgyODUxMCwiXyI6ImlmR0xMIiwiaWF0IjoxNjUzNjk0MDg1LCJleHAiOjE2NTM2OTc2ODUsImlzcyI6InB1Yi0yNDkyNzYiLCJzdWIiOiJwb3N0LXJlYWN0aW9uIn0.Eprq0hoB0WBfVxAjy85N1H0NQ_E_sXjj_EcPJi-wg0Y&s=r
""A bipartisan approach to gun control legislation will need support from at least 10 Republicans to surpass the filibuster’s 60-vote threshold. Democrats maintain publicly that they can meet the challenge.
"“There are at least six to 12 who have gone beyond general expressions of interest to looking at drafts and language in statute that could pass,” Democratic Sen. Richard Blumenthal, who is also involved in bipartisan talks, told reporters this week. “I’ll let them announce when they’re ready who they are. But this next week will be a testing time because we’ll see who exactly is willing to put signatures on paper.”
"The details of the talks are still unclear, although the lawmakers are reportedly discussing federal legislative efforts to bolster school security measures and expand background checks for commercial gun sales on the federal level. Lindsay Graham, the Republican senator from South Carolina who is participating in the talks, told reporters that a national red flag law would be dead on arrival “whatever the color,” although there seems to be an appetite among some Republicans for a federal grant program that would incentivize states to adopt red flag laws.
"If it sounds familiar, that’s because it has come up repeatedly as an option after mass shootings in recent years. Graham and Blumenthal in 2019 spearheaded a legislative effort to encourage states to adopt red flag laws, but the bill didn’t get enough traction among GOP lawmakers to become law. Florida Sens. Marco Rubio and Bill Nelson had previously introduced a similar bill in 2018 that also fizzled.
"Will this time be different? “At the federal level, there is bipartisan support for incentivizing states to draft and implement and enforce their own red flag laws,” GOP Sen. Todd Young said in a brief interview with The Dispatch on Thursday.
"“Indiana Republicans were, years ago, already on board with respect to some of the red flag conversations, and that’s why we have the most robust red flag law in the country,” Young added. Indiana’s red flag law requires law enforcement officials to seize firearms from any individual who presents an imminent risk of danger to himself or others.
"There is skepticism that red flag laws are effective in preventing mentally unstable individuals from getting their hands on AR-15s, more often than not the weapon of choice for mass shooters. New York’s red flag law, for example, did not stop the Buffalo gunman from obtaining the weapon he used to murder 10 people in a supermarket last week.
"GOP Senate Minority Leader Mitch McConnell said he has encouraged Republican Sen. John Cornyn of Texas to engage in talks with Democrats.
"“I am hopeful that we could come up with a bipartisan solution that’s directly related to the facts of this awful massacre,” McConnell said in an interview with CNN on Thursday. “I’m going to keep in touch with them, and hopefully, we can get an outcome that can actually pass and become law, rather than just scoring points back and forth.”
"Other Republicans aren’t as convinced that the bipartisan talks will produce a bill that 10 Republicans will support. “I don’t know that there’s a concerted effort to try to find what that common ground is,” GOP Sen. Mike Braun of Indiana told The Dispatch Thursday. “I’m interested in listening, but I'm a believer that it’s going to be mostly up to states to do it,” he said, adding: “It’s going to be difficult to get 60 votes to satisfy California and Indiana at the same time.”"
The Uvalde police are getting pummeled for taking so long to engage the shooter. A friend of mine who works in law enforcement tells me that their tactics (help people to escape; establish a perimeter; try to get a dialogue going with the gunman) are appropriate for a hostage situation, in which the gunman isn't shooting but has demands he wants met. An active-shooter scenario calls for a different approach: go into the building, confront and engage the shooter. Seems the police misread and/or mishandled the situation.
ReplyDelete