Gun rights advocates say so-called red flag laws that aim to stop mass shootings aren’t needed because states already have laws that allow mentally ill people to be confined against their will and lose the right of firearm ownership for life.
Florida has the Baker Act, which allows the hospitalization of people against their will for mental health evaluations. California and other states have similar laws that allow institutionalization for up to 72 hours for evaluation.
In California, a person who has been involuntarily committed would be prevented from possessing or purchasing a firearm for five years. In Florida, an involuntarily committed individual could lose the right to purchase firearms after confinement.
Aidan Johnston, director of federal affairs for Gun Owners of America, said federal law bans mentally ill people from owning guns.
“People who are disqualified for being what is legally known as ‘mental defective,’ they receive a lifetime gun ban when Congress never contemplated they would receive a lifetime gun ban. That’s a problem for Gun Owners of America,” Mr. Johnston said.
Gun violence researchers counter that red flag laws target behavior — not mental health. They acknowledge, though, that they lack extensive data because the laws are relatively new.
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“We are early in the life of these policies to really be able to say with rigorous research methods what the effects of these laws are,” said Shannon Frattaroli, a professor and core faculty member of the Center for Gun Violence Solutions at the Johns Hopkins Bloomberg School of Public Health. “We certainly have descriptive studies that [extreme risk protection orders] are being used to intervene when someone is identified as being at risk of committing a mass shooting, committing a suicide.”
A bipartisan Senate deal on gun control calls for giving states incentives to enact red flag laws, among other provisions. The agreement, reached Sunday, resolves a decades-long impasse on gun policy.
Red flag laws, or extreme risk protection orders, vary from state to state. Police, family, coworkers, neighbors or friends typically can petition a judge to have someone’s gun taken away when they feel the person is at high risk of hurting themselves or others. Depending on the particular law, the person can lose a firearm for a few days to as long as a year.
Nineteen states and the District of Columbia have red flag laws, and the majority of them were enacted from 2018 to 2020 after the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida.
In 2020, red flag laws were used about 5,000 times to temporarily confiscate firearms. Florida is the state that used its red flag law the most, according to a Wall Street Journal report last year.
It’s unclear how many people have their firearms returned.
An NBC affiliate TV station in Denver reported that 146 guns had been confiscated under Colorado’s red flag law since it took effect in 2020 and 116 eventually got their firearms back.
John R. Lott Jr., president of the Crime Prevention Research Center, said he is unaware of national data about how frequently firearms are returned to their owners but noted that about one-third of protection orders are overturned once a hearing is held.
“The rate should actually be much higher because few people who go through the hearing process actually have legal counsel,” Mr. Lott said. “The taking of the guns is also usually just temporary, but there is no real national data on how long those takings last.”
He said red flag laws run afoul of due process.
He noted that mentally ill people can be involuntarily committed to hospitals and have their guns confiscated — sometimes for life — under state laws.
“People who truly pose a clear danger to themselves or others should be confined to a mental health facility or be required to seek treatment. Laws used to confiscate guns are typically enforced when dealing with suicidal people,” Mr. Lott said. “However, if someone is suicidal, there are many other ways they may choose to kill themselves. Simply taking away a gun isn’t the answer.”
Ms. Frattaroli said red flag laws aren’t about mental health but instead focus on behavior or words that indicate someone might do harm.
“From all that we know about violence, the best predictors of [violence] are past violent behavior and threats of violence,” she said. “Mental health isn’t a good predictor of future violence. It’s a very different sort of set of criteria.”
She suggested that states and localities that use the laws have more consistency and awareness.
“What’s really important is that attention and resources be paid to implementation,” Ms. Frattaroli said. “When we look across the states, there is tremendous variation across states and within states with regard to how frequently they are being used.”
Last week, the House passed the Federal Extreme Risk Protection Order Act, which would allow courts to take guns from people deemed dangerous and bar them from purchasing firearms.