December 14, 2022

Mass shootings seem to always be a great excuse for lawmakers and media to push for more red flag laws.

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Such is the case with the recent Club Q shooting in Colorado that killed five people and injured 22 others. But there are several problems with this.

First, these laws are largely left up to interpretation. Two, it’s very difficult to put these laws into action without violating Constitutional rights. And third, states that do have these laws fail to effectively use them, rendering any discussion or legislation in this realm to be a complete waste of time.

A Brief Rundown on Red Flag Laws

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In June, the House passed a gun control bill that allowed for “red flag laws,” meaning that a person’s family member, coworker, friend, police officer, or another person close to them can petition federal courts to remove firearms from that person’s home if they believe they are significant risk of harming themselves or others. Often, firearms are then temporarily removed from possession of the person being flagged as a risk before any hearings take place. The House bill has yet to pass in the Senate.

Nineteen states and Washington D.C. have red flag laws. But the Supreme Court recently dealt a blow to red flag laws. In the case Caniglia v Strom, the Supreme Court protected both privacy rights (fourth amendment) and gun rights (second amendment) by ruling the unwarranted search of the home and seizure of the firearms in possession of the individual in question, Edward Caniglia, to be unconstitutional.

A recent article from the Poynter Institute concluded that while there have been instances where court orders resulting from red flag laws may have prevented suicide, there is simply not enough research to conclude that these laws prevent dangerous people from killing others. And even in many of these 19 states that have red flag laws, a recent study from the Associated Press found that they were rarely used. For example, Chicago had 8,500 shootings, which led to 1,800 deaths since 2020. But red flag laws have only been used four times in Chicago.

A recent study from the Crime Prevention Research Center found that the supposed high support for these red flag laws is likely due to the public’s lack of knowledge about how they work. When survey respondents were informed of the lack of due process in most red flag cases, strong support of these laws came down from 34% to 14%.  Back in 2018, the ACLU of Rhode Island spoke out against red flag laws, raising concerns about the impact these laws would have on civil liberties.

These red flag laws don’t seem to work because of their inherent vagueness. First, determining whether a person is a danger to themselves or others is widely left to the discretion of the police officer present. Second, a recent article from Reason.com which examined Colorado’s red flag law in the wake of the Club Q massacre stated that “the ‘significant risk’ standard [used to determine if a person is a risk] is open to wide interpretation, and the process encourages judges to err on the side of issuing orders,” putting innocent people in danger of losing their Second Amendment rights. The article also pointed out how the red flag law would have likely expired months before the Club Q attack, unless the police or another petitioner was granted an extension by successfully making the case that the would-be shooter remained a threat. So the law likely wouldn’t have even prevented the tragedy.

Mark Oliva from the NSSF Weighs in on Red Flag Laws and Due Process