A so-called “red flag” bill to allow for temporary gun seizures is being developed in a joint effort between Democrats and Republicans in the U.S. Senate.
U.S. Sens. Lindsey Graham, R-SC, and Richard Blumenthal, D-Conn., have crossed the aisle to put the finishing touches on a proposed Emergency Risk Protection Order statute that would allow local courts to authorize law enforcement to temporarily suspend the gun rights of someone thought to be at risk. The proposal would provide grants and incentives for states to adopt such a measure on their own.
“Time to enact common-sense legislation in Congress to empower states to deal with those who present a danger to themselves and others — while respecting robust due process,” said Graham, who heads the important Senate Judiciary Committee, on Monday.
First adopted in Blumenthal’s home state in 1999, such laws typically allow for family members or police to petition a court to order an individual’s guns and firearms permits to be seized while simultaneously flagging them in federal background check databases to bar new purchases. The affidavit process can typically either be filed for an emergency ex-parte hearing, which does not require the subject to appear in court, or a more standard hearing where the individual has the chance to present a case to retain their gun rights.
Those who have their guns seized can later petition to have their rights reinstated but opponents to such laws point out this puts the burden of proof on the individual rather than the court system, which can be a costly and sometimes daunting process. The orders typically last for one year but can be extended.
Some argue these types of laws have gone too far in some cases, violating constitutional rights and earning them the reputation of “turn in your neighbor” laws. This has not stopped their increased adoption and expansion in recent years– with some proposals to allow even school employees such as guidance counselors and teachers as well as the employers and co-workers of a subject to file for such orders. Second Amendment groups have blasted the ERPO process, arguing it provides no structure for those deemed at risk to receive help, or those supposedly believed dangerous to be taken into custody. Further, they point to due process concerns and raise the issue that the laws are simply unneeded.
“If a person is an actual threat to themselves or others, or engaging in criminal activity, then there are thousands of existing federal, state, and local laws by which families, friends, or law enforcement can more appropriately and effectively respond to those facts and circumstances,” said the Firearms Policy Coalition on the subject of red flag laws on Monday.
On the opposite side of the coin, local, regional and national anti-gun groups enthusiastically support ERPO laws. A Bloomberg-allied gun control organization in Washington spent $4 million, largely garnered from a handful of wealthy donors, to win support for such an initiative from voters in the Evergreen State in 2016.
Graham and Blumenthal’s legislation could move quickly through Congress, with Senate Majority Leader Mitch McConnell, R-KY, this week saying he was ready to heed President Trump’s call for bipartisan, bicameral cooperation on such issues.
“Senate Republicans are prepared to do our part,” said McConnell. “Today, I spoke with Chairman Graham of the Senate Judiciary Committee, Chairman Wicker of the Senate Commerce Committee, and Chairman Alexander of the Senate HELP Committee. I asked them to reflect on the subjects the president raised within their jurisdictions and encouraged them to engage in bipartisan discussions of potential solutions to help protect our communities without infringing on Americans’ constitutional rights.”
The Democrat-controlled U.S. House has already passed legislation for universal background checks and other gun control initiatives this session.