This is part two of a two-part response by CRIT-LARGE to the August 2019 shootings in El Paso and Dayton. To read part one, find it here.

Following the shootings that took place in El Paso, Texas, and Dayton, Ohio, lawmakers on both sides of the aisle have sought to propose new federal legislation to help curb gun violence. With mass shootings currently at the forefront of our national discourse, there is no doubt that legislative inaction is politically indefensible for either side. 

With the Second Amendment being at the center of the controversy, Republican and Democratic lawmakers have their hands tied as to the legislative reach of their bill. At the federal level, the proposed legislation would have to steer clear of any permanent deprivation of citizens' right to bear arms, a complete ban on a category of guns, regulation of intrastate commerce, etc. Furthermore, these same elected officials are also beholden to their constituents. 

For Republican voters, the limitations on plausible legislation is that which does not hinder law-abiding citizens from the ability to purchase guns, remove their right to due process for gun confiscation, or place an undue burden on their ability to purchase a firearm. For Democrats, ideal legislation consists of universal background checks, a ban on assault weapons (which has no clear definition), and a ban on high-capacity magazines.

With this amount of gridlock at the federal level, citizens have looked to their respective states to enact laws that would help remove firearms from individuals more likely to commit violent crimes or mass shootings. This has resulted in numerous states adopting “red flag” laws which would allow family members, friends, or authorities the ability to petition a state court to issue an extreme risk protection order (ERPO) that would grant authorities the right to temporarily confiscate firearms from a person that has been deemed a danger to themselves or others. 

Since the shooting in Parkland in 2018, the number of states to have enacted red flag laws has increased from 5 to 17. 

Due to the recent shootings this month, red flag laws have received increased support from conservative lawmakers as well as conservative pundits as a tenable measure to help deter mass shootings in the future. In a press conference at the White House, President Trump pointed to the problem of guns falling in the hands of wrong people, stating, “We must make sure that those judged to pose a grave risk to public safety do not have access to firearms,” and, “that is why I have called for red flag laws, also known as extreme risk protection orders.” 

Soon after, Senator Lindsey Graham, chairman of the Judiciary Committee, stated that he was in the process of proposing a bill that would help more states carry out red flag laws by developing a federal grant program. 

With support from Republican lawmakers increasing, the question that constitutionally-minded individuals are forced to ask themselves is whether these red flag laws act in accordance with the Constitution and whether they are tenable solutions to deterring future shootings. 

Regarding the constitutionality of red flag laws, it must be understood that though all law-abiding citizens have the right to bear arms, the government does have the ability to set reasonable restrictions as to how that right is used; that is, the Second Amendment is not unlimited in its scope. 

As decided in the D.C. vs. Heller case (2008), individuals have the right to own guns and use them for legal purposes such as self-defense, but does not allow the right to carry any weapon whatsoever and for whatever purpose. This is demonstrated in the restriction of fully automatic weapons and “bump stock” accessories, and the prohibition of firearms in “sensitive places” such as government buildings, courtrooms, and public schools. 

Additionally, the federal government has demonstrated that it can deny citizens their right to bear arms apart from a criminal conviction. This is evident in instances where an individual is a known drug addict, has been dishonorably discharged from the military, has been deemed mentally ill, or renounced their citizenship, etc.

When considering the constitutionality of these laws, it is important we remember that we are not only dealing with the rights of an individual in question but also the rights of individuals in their direct community. If ample and convincing evidence is presented which demonstrates an individual is a threat to himself and/or others, that is that they have expressed interest in harming others, courts should have the ability to issue a protection order. This is given the fact that the individual in question is given the ability to contest the claims laid against them.

The decision to implement red flag laws at the state level should also fall on its effectiveness. 

Looking at the evidence related to the gun confiscation of individuals who have displayed red flags, it is almost impossible to quantify the number of mass shootings that have been deterred due to ERPO’s. But what should pique our interests are those shooters that did demonstrate red flags before their attack. Here is a short list of red flags from the most recent shootings:

• In the Ohio shooting, the shooter, who was bipolar and suffered from obsessive-compulsive disorder, was said to have shown his ex-girlfriend a video of a mass shooting on their first date, texted with her about mass shootings, and sent threatening letters to his previous girlfriend. 

• Before the El Paso shooting, the mother of the shooter explained that she had called the Allen, Texas police department to inform them that her son owned an “AK”-type firearm, and was concerned due to his “age, maturity level, and lack of experience handling such a firearm.” No further investigation was conducted by law enforcement officials. 

• Lastly, in the case of the Parkland shooting, the shooter posted a YouTube video of himself vowing to be a “professional school shooter,” and had the police called to his residence numerous times. 

In each of these states, at the time, no form of red flag legislation existed (though it is impossible to know if those aware would have reported them). 

Following the death of 31 individuals in a single weekend, it should be unacceptable to self-identified conservatives and those in the Republican party that some form of legislation not get passed. Though I do believe there are “good guys with guns” who have and will disarm potential shooters, there are too many instances where there aren’t, and many innocent individuals have been deprived of their basic right to life. 

Legislation is not the answer to all of our problems but it can certainly help avoid many of them.