Advocates say the laws help keep guns out of the hands of potentially dangerous people. But they’re not perfect.
Gun control has been a hot topic in the United States for years. But following May’s school shooting in Uvalde, Texas, politicians faced increased pressure to take action. If you’ve been following the gun control debate at all, you might have heard the term red flag law before, as it’s a big priority for gun control advocates.
Currently, red flag laws only exist at the state level. But early last month, the House passed a federal red flag law as part of its package of gun control measures. Per CNN, the House’s package would have authorized and guided federal courts on issuing extreme risk protection orders to prevent potentially dangerous people from buying guns. However, that version didn’t have much bipartisan support, so there was a lot of back-and-forth to find a version of red flag laws that Senate Republicans would get on board with. Eventually, the upper chamber agreed on a bill that included $750 million in grant money to encourage individual states to create red flag laws. President Biden signed Congress’s final gun control package into law on June 25.
But what exactly is a red flag law, and why is it so central to the debate? Let’s break it down.
What is a red flag law?
Red flag laws are gun control measures aiming to prevent gun violence by identifying people who might be a risk to themselves or others. With these laws, state courts issue protection orders, allowing police to temporarily remove a person’s guns if they’re ruled to be a threat.
Because there is still no federal regulation concerning red flag laws, they look different from state to state. For example, some states, like Florida, only allow law enforcement officials to put in a request to remove someone’s weapons. Other states, however, let family members, co-workers, doctors, and close contacts file petitions, too.
How long someone’s guns are taken for depends on the state as well as across individual cases. As PolitiFact reported, courts can use emergency orders to remove a person’s guns for up to three weeks without a preliminary hearing. But before any final order is given, the court must hold a hearing and give the person the opportunity to bring a lawyer or defend themselves. Even then, people are not barred from purchasing or owning guns forever. Generally, restrictions last for up to a year.
How many states have a red flag law?
So far, nineteen states, and Washington, D.C., have red flag laws. These states are: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington.
Red flag laws have been credited with reducing gun deaths. In The Conversation, John Tures, a professor of political science at LaGrange College in Georgia, found that the seven states with the lowest firearm death rates for 2020 had red flag laws. Meanwhile, 14 of the 15 states with the highest rates of gun deaths didn’t have them, excluding New Mexico, where a red flag law took effect halfway through that year.
Still, proponents of red flag laws caution that they aren’t a magic fix to gun violence. For example, the Illinois Firearms Restraining Order Act, which passed in 2018, hasn’t been used much. State Rep. Denyse Stoneback (D) sponsored a bill requiring police receive annual training about the law that went into effect on June 1.
“[Red flag laws are] another tool in the toolbox to reduce violence when someone’s exhibiting dangerous behavior,” Stoneback told PolitiFact. “But it can only really be effective if it’s utilized.” On July 4, a gunman killed six people and injured dozens more when he opened fire at an Independence Day parade in Highland Park, Illinois, a suburb of Chicago. Authorities said he purchased the weapon he used legally in Illinois.
When was the red flag law created?
In 1999, Connecticut became the first state to pass a red flag law following a mass shooting by an accountant who worked for the state lottery. According to The New York Times, the shooter was being treated for “stress-related problems” before the shooting. However, the law went basically unused until the Virginia Tech shooting in 2007.
Red flag laws gained increased nationwide attention following the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida. As Deseret News noted, while 19 states currently have red flag laws, only five of those states had them in place before that attack. Florida itself passed its red flag law after the Parkland shooting. Last month, CNN reported that Florida’s law has been used over 8,000 times since its passing.
Why would people oppose a red flag law?
Red flag laws are not without their issues. To start, these laws already exist to ideally prevent domestic abusers from obtaining weapons — and they don’t really work. Furthermore, red flag laws involve creating a pre-criminal space, in that the state is effectively assigned the role of predicting the future. In Florida, defense attorney Kendra Parris filed a case challenging the constitutionality of its red flag law, arguing that the law was too vague, violated a person’s right to due process, and is applied in an arbitrary matter.
But perhaps the most important question goes back to the name itself: What constitutes a red flag? Following mass shootings, mental illness is often invoked as a cause, and many proponents of red flag laws echo that discourse. But mental illness doesn’t cause gun violence. As s.e. smith wrote in Rewire, “Fatal gun violence is usually linked to intimate partner violence and white supremacy, not mental illness.”
In addition, research shows that mentally ill people are less likely to engage in gun violence and, instead, more likely to be the victim of violent crimes. Activists worry that by strengthening the pre-criminal space, red flag laws will only increase surveillance of mentally ill people.