The Washington PostDemocracy Dies in Darkness

The likeliest — but still unlikely — gun bill: A ‘red-flag law’

A man carries a sign protesting red-flag laws during a gun-rights rally in Richmond in 2020. (Timothy C. Wright for The Washington Post)

A search for the epitome of a broken Congress is a difficult one — not because of a lack of options, but because of a surfeit of them.

But pretty high on that list is the lack of true debate on so-called “red-flag laws.”

A spate of mass shootings has again spurred talk about precisely what, if anything, can be done. Tragedy hasn’t forced Congress’s hand before, even when visited upon elementary schoolchildren. Why would that change after the murders of 19 kids in Uvalde, Tex., when it didn’t after the murders of 20 in Newtown, Conn.?

A big part of the difficulty is finding something that could even notionally gain the support of enough Republicans to join with Democrats to pass the 60-vote threshold in the Senate. But if there were such a thing, it might well be a red-flag law — which would enable law enforcement, if given a court order, to seize guns from someone considered a danger to themselves or others.

Plenty of Republicans have suggested that this would be something they could get on board with.

GOP senators like Lindsey O. Graham (S.C.), Marco Rubio (Fla.) and Rick Scott (Fla.), in particular, have leaned in on the idea, with the last two senators coming from the state where a gunman killed 17 at Marjory Stoneman Douglas High School in Parkland in 2018. Florida is one of only two red states with such a law, which passed shortly after Parkland, as it did in other states. President Donald Trump floated the idea after a series of such massacres in 2019. Arizona Gov. Doug Ducey (R) included a red-flag proposal in a 2018 school-safety plan. Texas Gov. Greg Abbott (R) also said in a 2018 proposal that a “properly designed” red-flag law could prevent such tragedies.

Even the National Rifle Association, at one point, seemed to suggest that it might give a little on this issue — even as it has staunchly opposed virtually any new gun legislation, deeming it a supposed slippery slope.

Trump, of course, quickly backed down on his threats to take on the NRA. Ducey would later claim that he never actually supported a red-flag law and promised that one wouldn’t pass on his watch. Likewise, Abbott sought to clarify that he hadn’t actually supported a red-flag law; he had merely suggested the legislature consider one.

It’s a familiar dance by now. Republicans float ideas in the immediate aftermath of a tragedy. Then time passes, gun-rights supporters mobilize, and the whole thing peters out.

There are surely many road blocks to getting something passed, even if the general idea garners bipartisan support.

The obstacles start with the idea that this should perhaps be a state issue rather than a federal one, as some Republicans suggested after the tragedy in Uvalde.

There’s also the issue of how you implement it. Some states allow family members or school officials to seek the court orders, while others require that the requests come from law enforcement. For this reason, among others, the states that do have such laws — 19 plus the District of Columbia — have seen massively different outcomes when it comes to just how many troubled people have seen their guns taken away.

There’s also the effectiveness question. A 2019 study identified 20 instances in which California’s red-flag law might have prevented a mass shooting. Another, focused on Connecticut and Indiana, links such laws to reductions in gun suicide rates. But it’s difficult to draw definitive conclusions since it involves weighing counterfactuals.

Critics will point out that New York has a red-flag law and that the gunman in the recent tragedy in Buffalo was reportedly flagged for a psychiatric evaluation after making a threat against his school. But no petition was filed, apparently because the threat wasn’t viewed as meeting the law’s specific criteria.

And indeed, any such proposal would be a tough vote for Republicans, given the long-standing suspicions that virtually any new gun legislation could be overzealously applied and come into conflict with the Second Amendment.

But conservative commentator David French, while acknowledging such concerns, has offered a passionate appeal to find a way to make it work. And in doing so, he prominently cites one of those Republicans who have suggested that red-flag laws could indeed be effective.

Ducey, in his 2018 safe-schools program, broke down the biggest mass shootings at the time and noted that virtually all of them included warning signs that could have met the threshold for a red-flag law.

“In 5 out of 5 of the most deadly school shootings, the killers displayed warning signs of being a potential threat to themselves or others,” Ducey’s program stated in 2018. “This stunning fact illustrates the need for a legal tool to keep firearms out of the hands of dangerous individuals.”

This again appears to be the case in the recent mass shootings. While New York’s red-flag law was ineffective in the recent Buffalo massacre, that appears to owe more to the law’s limits and how it was implemented in this particular case than a more general wrongheadedness. And in Uvalde, as The Washington Post’s team notes, there were plenty of warning signs about the 18-year-old shooter. Whether they would have risen to the level of a red-flag law’s threshold we can’t know, but no law will prevent every single mass shooting. And as Ducey’s presentation noted, we have plenty of precedents to study in constructing such laws.

Of course, the Ducey case also reinforces the dim prospects for this kind of law. Despite including the proposal in his 2018 program, in February 2019 he called the idea that he supported a red-flag law “misinformation.”

“I want people to know that there is no red-flag law in Arizona,” Ducey said. “As long as I am governor, there will be no red-flag law in the state of Arizona.”

Ducey seemed to be drawing a line between his proposal — dubbed a “Severe Threat Order of Protection,” or STOP — and the “red flag” label, even as a spokesman said at the time that Ducey’s proposal was “more aggressive than what you’ve seen in other states.”

Another spokesman said Wednesday that Ducey, despite eschewing the “red flag” label, still supports the idea. “We thought it was a good policy then and still do,” spokesman C.J. Karamargin said.

Regardless, though, the fact that the guy who went out on a limb for such a law was so wary of the “red flag” label — along with Trump and Abbott also distancing themselves from the idea — points to how this can and will play with the broader GOP. And for that reason, while a red-flag law might be the likeliest product of the coming debate, it’s still highly unlikely to become a reality.