Should States have “Red Flag” Laws?
Preventing gun violence is a recurring theme in U.S. history. One approach has been the initiation of “Red Flag” Laws. But are these laws appropriate and should they be enacted?
Rise of the Issue
Mass shootings in Buffalo, New York, and Uvalde, Texas reignited the debate on firearms and, notably, red flag laws.
Reg flag laws, as they are colloquially known, allow family members and law enforcement officials to petition a court to temporarily remove a person’s firearms upon a showing of danger to themselves or others. As of 2022, 19 states and the District of Columbia have some form of red flag laws on the books. Because the persons who commit mass shootings often show warning signs before they ultimately kill someone, red flag laws are seen as a way to prevent these from occurring.
Opponents question the efficacy of these laws and ask what price is being paid for this sense of security. Indeed, they say taking away one’s ability to possess firearms, even on a temporary basis, prior to a full adjudication by a court of law essentially hollows the due process protections enumerated in the Fifth and Fourteenth Amendments. Moreover, opponents say red flag laws impose a quasi-criminal penalty on individuals before any criminal action has taken place, while proponents of red flag laws argue that these laws are essential in combating mass shootings and are needed to reduce the loss of innocent lives.
Even though Congress and the states seem to be gridlocked, a poll found 79% of voters to be in favor of some form of red flag laws, including 78% of Republicans.
Connecticut Enacts First Red Flag Law
Following a shooting at the Connecticut Lottery, the state government enacted the nation’s first red flag law.
States Slowly Begin to Adopt Red Flag Laws
Indiana, California, Washington, and Oregon adopted some form of reg flag law.
Shooting in Parkland, Florida Spark a String of Red Flag Laws
Following the mass shooting at Stoneman Douglas High School, Florida, Vermont, Maryland, Rhode Island, New Jersey, Delaware, Massachusetts, Illinois, and the District of Columbia adopted some form of red flag law.
New Mexico Adopts a Red Flag Law
The most recent red flag law was adopted by the state of New Mexico.
Proponents argue that red flag laws would save the lives of innocent people by disarming those who are known to be dangerous. Opponents, though, allege there is insufficient evidence that red flag laws are the best solution.
Opponents argue red flag laws would allow for individuals’ rights to be taken without due process of law. Those in favor concede that there is little due process before firearms are taken, but say that a post-deprivation process is enough to satisfy the Fifth and Fourteenth Amendments.
Punishment Before a Crime Occurs
Some argue red flag laws would take away the rights and property of citizens before any crime is committed and opponents say this acts as a criminal punishment before any criminal act has occurred.
Red flag laws allow states to disarm known threats.
Because mass shooters often show signs of instability before committing an act, those closest to the person can go to court and have any firearms removed before anyone can be harmed.
Suicides may also be prevented.
Red flag laws are usually drafted so that they can include persons who show signs of danger to themselves and their means of suicide or self-harm may be removed before it is too late.
A dangerous person does not have to commit a serious crime before action can be taken.
Usually, a person needs to commit a felony, an act of domestic violence, or be declared severely mentally ill before they are unable to purchase or possess firearms. Red flag laws limit these persons’ access to firearms before such an event occurs.
A hearing is held before a final decision is made.
A person still has a day in court to either explain why they are not a danger or why the accusations against them are incorrect before the court issues a final order.
Complainants are typically required to provide some evidence before a temporary order is granted.
Before a temporary order is granted, the person complaining is typically required to either submit evidence to the court that demonstrates a danger or submit a sworn statement explaining why the order is sought.
Red flag laws remove circumvent due process.
By taking away a person’s Second Amendment rights and physical property before a full hearing can be held, the procedural safeguards of the Fifth and Fourteenth Amendments can be rendered null.
Can act as a punishment against a person before they have committed a crime.
Much like the premise of “Minority Report,” red flag laws attempt to deduce who is going to commit a crime in the future and punish them before it happens.
Red flag laws may push a person to become violent.
An already unstable person, who finds law enforcement on their doorstep to take away their firearms, may create a violent or deadly confrontation.
It can be vague and/or ambiguous as to what constitutes a “threat” or makes one dangerous.
Because there is no hard and fast definition of a threat or danger, courts may interpret these laws differently and result in unequal application of the law.
Red flag laws can be abused.
There is a possibility that these laws can be used against an innocent person by relatives.