The one gun law that might actually help stop mass shootings — and why it's so dangerous
After mass shootings, politicians and pundits alike declare that we need to take drastic action to stop another massacre from ever happening again.
But many of the commonly prescribed remedies wouldn’t actually do much to stop mass shootings.
Ban assault rifles? It’s difficult to even define an assault rifle — people mostly just use it as a synonym for “scary looking gun” — and there are plenty of rifles that would skirt such bans that would prove just as deadly in mass shootings.
Ban all guns (e.g., institute a nationwide “mandatory gun buyback”)? Good luck — there are literally more guns than people in the United States, so there’s virtually no chance the government could confiscate them all. Plus, there’s no evidence similar schemes in other countries have been effective at stopping violence. Australia, for example, did see decreasing murder rates after instituting its gun buyback — but at the same rate it was already decreasing, indicating that the measure likely had minimal to no effect.
Close the “gun show loophole”? Setting aside that the so-called loophole is mostly a myth, you’d be hard pressed to find a mass shooter who has used a gun bought at a gun show.
There is one law that could make a real difference if enacted nationwide, however. But it’s a double-edged sword that could have vast unintended consequences that seriously undermine the liberty of the U.S. citizenry. The question is, are the risks worth the potential reward? (And also, is it even Constitutional?)
I’m talking about red flag laws. These laws allow law enforcement or family members to petition a court to remove a person’s access to firearms if they are deemed a danger to themselves or others. And while in theory these laws could be crafted to target disturbed individuals with laser precision, serious consideration needs to be given to the possibility — some may even say the probability — that such laws would be abused to deprive innocent individuals of their Constitutional right to own a firearm.
The case for red flag laws
Red flag laws could have been effective in preventing many mass shooters because many of the gunmen in those shootings exhibited, well, red flags.
Take the Parkland shooting. Parkland shooter Nikolas Cruz, then 19, killed 17 people at Marjory Stoneman Douglas High School in Parkland, Fla., on Feb. 14, 2018. But he was known to law enforcement before the shooting; in fact, dozens of calls had been made to 911 about Cruz in the decade preceding the shooting, including for fights with his brother and for assaulting his mother. And the FBI had been alerted to a video comment Cruz made in which he said, “Im going to be a professional school shooter.” As NPR states:
The 19-year-old was the subject of dozens of 911 calls and at least two separate tips to the FBI. He also came to the attention of the Florida Department of Children and Families. Despite warning signs stretching back over a decade, no one intervened to stop the Valentine’s Day shootings.
It’s difficult to say for certain that a red flag law would have made a difference. But Cruz legally purchased the gun used in the shooting, so if he’d been flagged and stripped of his right to purchase a firearm through a red flag law, the Parkland tragedy very well might have been prevented.
The latest school shooting, still fresh in everyone’s minds, occurred on May 22 at Robb Elementary School in Uvalde, Texas. Details of the shooting are still emerging, but it appears that gunman Salvador Ramos did not have a criminal record or show signs of mental illness before going on his deadly rampage. But he did exhibit some warning signs; the AP reports that people who knew him noted “increasing signs of isolation, outbursts and aggression,” and that he sent social media messages “that offered photos of rifles, ammo and hints of his desire to hurt and kill.”
Reports that Ramos had previously been arrested for threats to commit a school shooting turned out to be erroneous, but it appears likely that Ramos revealed his plans in an angry rant after losing an online video game; the rant disturbed a fellow gamer so much that she reported the incident to the FBI hours before the Uvalde shooting, according to the New York Post. It seems less clear that red flag laws would have made a difference in this instance — the gamer reported the threat just hours before the shooting, which presumably wouldn’t have given the authorities enough time to act — but still, the changes in his behavior could have conceivably prompted a family member or friend to file a petition against him.
The dangers of red flag laws
The right to own a firearm is enshrined in the U.S. Constitution thanks to the Second Amendment (the argument that the language of the amendment relegates gun ownership to only members of a state-run militia are so spurious that they hardly even warrant a response, but if you’re interested in reading more about why this ahistorical argument is incorrect, read more here). Whether one likes it or not, the Second Amendment and an individual right of gun ownership are the law of the land, absent a Constitutional amendment.
One of the main problems with red flag laws is that they have the potential to deprive a person of their Constitutional right, even though they haven’t actually committed a crime. This wouldn’t necessarily always be the case; if someone made a credible threat, for example, that could constitute a crime, and the punishment could be to temporarily deprive them of their right to own a gun. But if someone is merely suffering from mental health problems, it isn’t necessarily easy to draw a line in the sand showing that they are a danger to themself or others necessitating the need to take away their firearms.
Deprivation of a Constitutional right requires due process, of course. But critics of red flag laws argue that such laws give due process short thrift. Reason magazine points out that in Florida and Maryland, two states with red flag laws on the books, the initial request to take away guns is almost never denied, and they’re issued before the respondent even has a chance to respond.
The Reason article quotes gun policy expert David Kopel on the importance of baking due process into such laws:
David Kopel, a gun policy expert at the Independence Institute in Denver, thinks properly designed red flag laws can have a positive impact. But he emphasizes the importance of procedural safeguards that states have largely failed to adopt.
There’s also the difficulty of enforcement. Flagging someone so they won’t pass a background check at the gun shop is one thing, but what if someone flagged by a red flag law already possesses firearms? Law professor Donald Kilmer lays out the dangers of such enforcement in the Washington Examiner:
The initial temporary orders are usually “self-executing.” That means you might get served with a court order that tells you to take your guns and surrender them to the police or a local dealer within the next 24 to 48 hours.
You are, of course, expected to comply. But since you cannot legally possess guns upon being served with the order, how are you supposed to transport your guns to surrender them? Perhaps you could just call the police and tell them you were served with a “red flag” order – marking you a “dangerous and volatile” person (even if you’re not) – and ask them to come pick up your guns.
That kind of situation is ripe for danger. In one situation in Baltimore, police ended up shooting a man when they came to collect his guns under a “red flag” law.
Finally, a law is only any good if it’s adequately enforced. That isn’t always the case. The racially-motivated shooting at a Buffalo, N.Y., grocery store earlier this month should have been prevented by the state’s red flag law, according to NBC News:
“It [the state’s red flag law] was designed exactly for this circumstance,” said David Pucino, the deputy chief counsel at Giffords Law Center, a gun-safety group.
Instead, after Payton Gendron appeared on the radar of New York State Police in June over a chilling comment about a murder-suicide he made in the classroom while he was still a minor, he was evaluated and cleared, paving the way for him to legally buy the semi-automatic rifle he is accused of using in the shooting 11 months later, law enforcement officials and New York Gov. Kathy Hochul said.
No official involved in the investigation in June initiated a court process that could have helped prevent Gendron from buying the rifle, a New York State Police spokesperson said Monday.
Now, state legislators are looking into whether those involved followed the proper protocol. “I’ve asked for the investigation of exactly what transpired there,” Hochul told Buffalo’s WKSE radio on Monday.
Beyond gun laws: the need for institutionalization
Advocates of gun control like to hand-wave away calls for expanding mental health care, insisting that mass shootings are a gun problem, not a mental health problem. But there’s no doubt that mental illness is the root cause of many, if not most, mass shootings. And we’ve done a piss-poor job of addressing mental health in this country.
When people think of institutionalization, they think of dysfunctional hellholes like the mental hospital in One Flew Over the Cuckoo’s Nest. I think attitudes and institutions in the U.S. have a tendency to swing from one extreme of the pendulum to the other. There’s little doubt that mental health institutions prior to the deinstitutionalization movement that began in the 1960s engaged in real abuses toward their patients, and that people were institutionalized who shouldn’t have been, with little due process.
But the pendulum has swung so far in the other direction that it’s virtually impossible to institutionalize people who desperately need to be institutionalized. We’re talking about people with severe mental illnesses who cannot adequately care for themselves and who cannot recognize that they need help (Xavier Amador, in his book, I Am Not Sick, I Don’t Need Help, writes about the phenomenon of anosognosia — lack of insight — which makes it impossible for some people with mental illness to recognize their mental illness). If such people are not forced to get help, they typically get no help at all. Along with people struggling with severe substance abuse, they are overrepresented among homeless populations.
Involuntary commitment of the mentally ill is a fraught issue. It has been and can be abused, and there have even been instances of people being mistakenly committed. Rigorous safeguards are necessary to ensure these kinds of mistakes don’t continue to happen. But it’s hardly a mercy to let the mentally ill rot on the streets in the name of protecting their individual liberty. It’s important not to stigmatize the mentally ill, who are overall not necessarily prone to violence. But that doesn’t negate the fact that there is a significant subset of mentally ill people who either directly or indirectly pose a threat to the safety of others.
I’ve experienced this firsthand. Last year, I met a family member suffering from severe psychosis at a restaurant in an effort to persuade them to get professional help. Other family members and I had been trying for months to get them involuntarily committed, to no avail.
After we shared an appetizer, they insisted on speaking to me in their car where they couldn’t be overheard. Naively, I agreed. They ended up taking off with me in the car, gunning down the highway at more than 100 mph. Did I mention they were also drunk? It is nothing short of a miracle that they didn’t crash the car, killing us both and perhaps some innocent bystanders as well. Individual liberty is gravely important and must be protected, but people experiencing mental health crises are often unpredictable and engage in reckless behavior that puts other people’s safety and liberty at risk, not to mention that they are themselves trapped in a prison of their own minds when in the throes of untreated mental illness.
I don’t claim to have all the answers. I don’t claim that institutionalization would have prevented all of the mass shootings that have taken place over the last few decades. But I’m willing to bet that at least some of them could have been. The left is quick to announce that gun manufacturers or the NRA “have blood on their hands” after every mass shooting. Leaving aside the veracity of that claim, it’s worth pointing out that by the same logic, by stonewalling efforts to make it easier to institutionalize the most vulnerable mental health patients, the exact same thing could be said of the left.
It’s easy to call for fruitless but effective-sounding measures like assault rifle bans in the wake of a tragic shooting. But it would be more fruitful if legislatures could compromise on measures that could actually make a difference, such as red flag laws and involuntary commitment — if such measures can be enacted with a rigorous and reverent protection of due process.
What do you think — do red flag laws work? Should it be easier to involuntary commit those experiencing severe mental illness? Share your thoughts by leaving a comment.