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June 22, 2022

Bipartisan Red Flags in the Senate

New gun legislation advanced last night is a combination of good and bad — maybe very bad — ideas.

As an old sage once said, “We have to pass the bill so that you can find out what’s in it.” That wasn’t quite the case in the Senate on Tuesday, but the upper chamber came awfully close to Nancy Pelosi’s infamous ObamaCare maxim with the new 80-page gun legislation put forward by a bipartisan group of senators and advanced two hours later by a 64-34 vote.

As Senator Josh Hawley (R-MO) put it, “Here we are voting to move on a bill negotiated entirely behind closed doors, released only an hour ago, that no one has had time to fully read, that ignores the national crime wave and chips away at the fundamental rights of law-abiding citizens.” Other GOP senators said the same thing.

Hawley’s right, primarily because this legislation, highly touted in the media though it will be, won’t do a whole lot to reduce crime or prevent the kinds of mass murders that occurred recently in Buffalo and Uvalde that spurred congressional action.

What will it do? It falls into three primary categories. The senators want to stiffen penalties for straw purchases and firearms dealers evading licensing requirements; extend background checks for gun purchases by anyone under 21 to include an investigative review of juvenile and mental health records (notably, the bill doesn’t raise the purchase age, as many Democrats want); and incentivize states to maintain or create red flag laws (a.k.a. extreme protection orders) with a $750 million fund to get things going. Nineteen states and DC currently have such laws.

As we warned last week, there are some red flags about this focus on incentivizing red flag laws around the country. The threat to due process is very real because red flag laws often deprive people of their constitutional rights before a crime has even been committed. And it’s sometimes based on the vindictiveness of domestic disputes rather than solid evidence of criminal behavior or even tendencies.

Indeed, the bar is low. According to The Washington Post, “The bill released Tuesday would bar a misdemeanor domestic-violence offender who has a ‘current or recent former dating relationship with the victim’ from owning or buying a gun.” That’s right — a misdemeanor relating to a nebulously defined relationship could cost someone his gun rights for five years or more.

In theory, it’s a great idea to keep firearms out of the hands of individuals who will use them to do harm to innocent people. In practice, it’s a whole lot more complicated than that.

“Once red-flag laws are on the books, we’re on the most slippery of slippery slopes,” says Stephen Kruiser. “One day people are raising legitimate concerns, the next we have people reporting the neighbor who just rubs them the wrong way.” Or who makes the “wrong” comment on social media.

That’s why the NRA opposes the bill. “This legislation can be abused to restrict lawful gun purchases, infringe upon the rights of law-abiding Americans, and use federal dollars to fund gun control measures being adopted by state and local politicians,” the NRA said in a statement. “This bill leaves too much discretion in the hands of government officials and also contains undefined and overbroad provisions — inviting interference with our constitutional freedoms.”

Yet there is bipartisan agreement, at least in the Senate, and it’s likely to pass. “This bipartisan gun-safety legislation is progress and will save lives,” said Senate Majority Leader Chuck Schumer. “While it is not everything we want, this legislation is urgently needed.”

Senate Minority Leader Mitch McConnell concurred: “Our colleagues have put together a commonsense package of popular steps that will help make these horrifying incidents less likely while fully upholding the Second Amendment rights of law-abiding citizens.”

The Post also notes something interesting regarding the Republican compromisers: “Of the 10 Republicans who signed on to the framework last week, four are not seeking reelection, and five others are not up for reelection until 2026.” The latter group includes Cornyn, the lead GOP negotiator, who was roundly booed for the bill at the Texas Republican Convention over the weekend.

It’s not that it’s impossible to craft laws in such a way as to put serious roadblocks in the way of would-be killers. This legislation, for example, rightly puts emphasis on mental health. But the primary roadblock — that murder is illegal — obviously hasn’t dissuaded a single murderer. The idea that chipping away at the Second Amendment and other constitutional rights is going to finally do the trick is a BIG lie. And as Schumer alluded, “progressives” are by definition never done chipping away.

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