Monday night’s GOP debate in Greenville, South Carolina highlighted an important policy issue that continues to be pushed to the forefront of the public’s attention. The debate featured five highly qualified candidates for County Sheriff who discussed topics as diverse as recruitment, reducing emergency response times, and how the county should coordinate its activities with federal law enforcement. However, one topic that generated disagreement among the candidates was “red-flag” laws that empower law enforcement to seize legally owned firearms under certain conditions. Some conservatives are flatly opposed to red-flag laws, while others support their passage providing they contain appropriate due process guarantees for law abiding gun owners. But what do these laws involve and can they be implemented in a manner that protects our Second Amendment rights?
Our Fundamental Rights Are Inalienable, Including Our Right to Keep and Bear Arms.
As a nation, America is often described as exceptional. American exceptionalism speaks to those aspects of our government, society and culture that make our nation unique. One of those aspects was the recognition by the Founders that our most fundamental of rights are not given to us by government but rather our Creator (or God). This includes our right to keep and bear arms for self-protection and to provide us the ability to resist a tyrannical government. Recognizing this, most Second Amendment advocates are rightly skeptical of any attempt by government to restrict access to firearms because the state cannot take away what it has not given us in the first place. Yet, public sentiment is growing to do something about mass shootings by individuals who clearly never should have had access to firearms in the first place (e.g., Dylann Roof). Handgun suicides are also a major public health concern that have proven difficult to prevent without proactive third-party intervention. Where public pressure has come to bear to “do something” about mass shootings, red-flag laws are apparently the new “go-to” answer at both the federal and state levels.
When Fundamental Rights Conflict, Legislators Must Seek Constructive Balance.
Former Congressman Trey Gowdy, who previously represented Greenville, South Carolina, appeared on Fox News’ Sunday Morning Futures last August to discuss the growing concern about mass shootings in America. Gowdy noted that our right to life is our most basic and fundamental right from which all others emanate. He also correctly noted that all fundamental rights have corresponding responsibilities and restrictions that apply to each of us as individuals. In certain cases involving the Second Amendment, such a restriction could be that our fundamental right to keep and bear arms can be subordinated in favor of protecting life and ensuring public safety. But subordination does not mean elimination. When such a conflict occurs between rights in public policy, as we are now seeing in the debate about red-flag laws, the proper response is for legislators to craft laws that achieve a constructive balance between these rights. As Congressman Gowdy points out, “[It] doesn’t matter if you have the right to keep and bear arms if you are dead.” Therefore, public debate about the viability, effectiveness and constitutionality of red-flag laws is a good thing and should be encouraged.
Red-Flag Laws Can Be Designed to Protect Our Rights and Improve Public Safety.
A recent nationwide study of mass shootings occurring between 2009 and 2019 showed that in more than half of all cases the shooter exhibited dangerous warning signs prior to the event. Such studies have driven public concern about giving friends and family members the proactive ability to identify these shooters before they act, and to allow them to file a complaint requesting the seizure of their firearms. In response to this concern, Senators Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) have proposed the Federal Extreme Risk Protection Order Act. This federal red-flag bill compares to similar legislation currently pending or passed into law in at least 25 states. For example, the South Carolina General Assembly has proposed legislation (Bill 3275) that will empower law enforcement, under court order, to seize firearms from an individual deemed to be a threat to themselves or others. This bill does provide protections for due process rights for suspect firearm owners, including a mandatory hearing within seven days of firearm seizure to permit a gun owner to appeal the court order. Bill 3275 provides a framework for balancing the rights of South Carolina gun owners against public safety, but there are further amendments to the Bill that still need to be considered.
Proposed Red-Flag Laws Can Be Enhanced to Better Protect Our Fundamental Rights.
South Carolina’s proposed red-flag law provides a legal framework to mitigate the risk of firearms being misused by violent actors. However, there are important enhancements to this bill that need to be considered by South Carolina and other states. For example, the National Rifle Association (NRA) has called upon federal and state legislators to establish criminal penalties for complainants who bring false or frivolous charges against a firearms owner. The NRA also supports mandatory mental health treatment for individuals deemed at risk should their right to possess a firearm be taken away. Legislation should also be enhanced to provide judges with explicit guidelines that help them determine whether removing a firearm from an individual’s possession is warranted. Finally, given the potential for unintended consequences involving a violation of due process rights, it would be prudent to put a ten-year sunset provision into proposed red-flag legislation. This would allow policy makers to evaluate through practical experience whether such laws are working as intended to mitigate risk before making them permanent.
State Red-Flag Laws Have Produced Mixed Results Where They Have Been Passed into Law.
Several states have passed their own version of red-flag laws with the best of intentions, but apparently with mixed results. For example, one study of Indiana’s red-flag law has found that once a court had seized a firearm, the right of the owner of that firearm to have it justifiably returned was closely linked to whether the owner was able to appear at their court hearing. This implies that citizens with lower incomes and less flexible work hours would be at greater risk of being denied their Second Amendment rights because they are less likely to appear. As another example, Connecticut’s red-flag law has been found to be moderately effective in reducing the risk of suicide. However, one-third of contested cases in Connecticut resulted in the owner having their seizure order overturned, suggesting that it may be too easy to file a red-flag complaint. Likewise, an independent study by the Crime Prevention Research Center (CPRC) concluded that such laws had no significant impact in reducing the number of mass shootings or suicides. CPRC’s research suggests that red-flag laws may only make us all feel like we are addressing the problem, but in fact are doing no good. That’s why the states should be leading the way, and not the federal government, by serving as laboratories where red-flag laws can be tested and validated as saving lives.
Red-Flag Laws Only Treat the Symptom but They Do Not Cure the Core Problem.
One thing we know about red-flag laws is that they do not address the core underlying problem leading to mass shootings: the shooter. A recent study completed by The Violence Project looked at the life histories of every perpetrator of a mass shooting since 1966. Their research uncovered four common traits among these shooters. First, all shooters had experienced some form of childhood trauma or abuse that became a precursor to mental illness. Second, almost every shooter reached a crisis point in the weeks leading up to the shooting. Third, shooters sought validation for their action by studying the actions of previous shooters. Finally, each shooter had the means to carry out their attacks by having access to a legal firearm or the ability to obtain one from a family member. Given these findings, red-flag laws will be not be a final solution to gun violence of any kind. Instead, we must look at them as just one more tool in the broader law enforcement arsenal whose efficacy needs to be assessed over time.
Eric Beck
Editor-In-Chief
Free Nation Media LLC
Greenville, South Carolina
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