In a rare outbreak of bipartisan cooperation on a contentious topic, a group of 20 senators — half Republicans, half Democrats — announced last weekend that they had reached an agreement on the outlines of what would be the first federal gun-control bill in more than 25 years.
Among its provisions, the legislation would increase federal funding for school security; require that background checks on gun buyers younger than 21 include a search of juvenile court and mental health records; expand the ban on gun purchases by anyone subject to a domestic-violence restraining order; and crack down on gun sellers who try to evade the requirement to register as firearms dealers.
The proposed bill would also create a federal grant program to entice states into adopting “red-flag” laws — laws that would allow guns and ammunition to be kept “out of the hands of individuals whom a court has determined to be a significant danger to themselves or others.” Nineteen states — including Massachusetts, Vermont, and Rhode Island — and the District of Columbia have enacted such laws in recent years. Advocates argue that most mass shootings could be prevented if only guns were confiscated from people showing signs that they are likely to commit violence against themselves or others.
No doubt that’s true. But it’s also problematic.
An enduring challenge in any free society is to strike the right balance between liberty and security — to protect the safety of the public while respecting the rights of citizens. The tension between individual freedom and communal security is as old as the American republic. Often, the infringements on liberty have been egregious: Think of the Alien and Sedition Acts, the Palmer Raids following World War I, and the internment of Japanese Americans during World War II.
Red-flag laws, also referred to as “extreme risk protection orders,” offer a way, in theory, to get the balance right: to temporarily keep guns away from disturbed and antisocial individuals who show signs of being potential killers without trampling on the Second Amendment rights of tens of millions of law-abiding gun owners.
The record to date, however, suggests that that is much easier said than done.
The key problem is that the warning signs that mass shooters display — the “red flags” — are shared by countless people who would never use a gun to hurt anyone. Ross Douthat, reflecting on school shootings in his New York Times column, observes that “people drawn to this kind of terrorism are overwhelmingly of a type — young, troubled, socially awkward men.” But there are millions of American men who are young, troubled, and socially awkward, and only the tiniest fraction of them will ever be tempted by thoughts of homicidal mayhem.
In the wake of horrific slaughters like the ones committed recently in Buffalo and Uvalde, the red flags stand out. “Behavioral markers may provide a measure of predictive capability” when it comes to mass shootings, the federal Defense Science Board concluded in a study commissioned after the 2009 massacre at Fort Hood, Texas. “However, this predictive capability is far from reliable or certain. While such markers may be sensitive, they are of low specificity and thus carry the baggage of an unavoidable and costly false alarm rate.” In other words, the red flags definitely exist, but because they are so common they aren’t of much help in identifying real threats in real time.
Which perhaps explains why most states with red-flag laws on the books haven’t invoked them all that often. Florida, which enacted its law after the 2018 Parkland school massacre, has issued nearly 9,000 extreme risk protection orders. But Florida is an outlier. “In the District of Columbia, only 20 orders have been issued since 2018,” CBS News reported earlier this month. “And in the New York City area, fewer than 10 emergency orders are listed in state court records since 2019.” Similarly, 88 such orders were issued in 2020 and 2021 for the entire state of Illinois. In Massachusetts, just five orders were granted in 2021.
Some critics argue that the only way red-flag laws can work is for them to be deployed far more aggressively. But at what cost? Without extremely robust due process safeguards, that would inevitably strip a great number of innocent people of their constitutional rights. “Policies targeting individuals based on risk factors would result in an extremely high rate of false positives,” researchers for the RAND Corporation wrote in a 2021 analysis. “Even the best available risk factors can identify only a subpopulation in which the risk of committing a mass shooting is on the order of one in a million.” Are we prepared to curtail the freedom of 999,999 Americans who pose no threat in order to keep the one in a million away from guns?
The sweeping use of red-flag laws to withhold Second Amendment rights from anyone with the social characteristics common to mass shooters is akin to President Franklin D. Roosevelt’s order to round up hundreds of thousands of Americans of Japanese descent in order to prevent espionage or sabotage during the war against Japan. Some terrible outcomes might indeed be prevented, but at the price of lost liberties on a wide scale.
When Rhode Island was considering a red-flag law in 2018, the state chapter of the ACLU raised just alarms. In a 14-page analysis, it expressed deep concern “about the breadth of this legislation, its impact on civil liberties, and the precedent it sets for the use of coercive measures against individuals not because they are alleged to have committed any crime, but because somebody believes they might, someday, commit one.”
To date, red-flag laws have typically been equipped with only weak due process safeguards. Generally an initial order requiring someone to surrender his license to carry plus any firearms in his possession can be obtained on the basis of a claim that he is likely to cause harm to himself or others. The individual usually has no right at that stage to challenge such a claim, and judges tend to approve confiscation orders automatically.
The bipartisan Senate deal seems to recognize the serious due process shortcomings in existing red-flag laws. Its plan to encourage more states to adopt such laws specifies that they must be “consistent with state and federal due process and constitutional protections.” With sturdy safeguards and high standards of proof, concerns about the fairness of red-flag laws could be addressed. But the more rigorous the due process, the more likely that a potential mass shooter will not be stopped.
Keeping guns from potential mass killers is an obvious and urgent necessity. So is protecting the constitutional and civil liberties of innocent people. Can Congress square that circle? The bipartisan Senate bill has yet to be finalized, but the answer, if there is one, will lie in the details.