The Big Question About Red Flag Laws With the Gun Safety Deal

While a newly announced bipartisan framework in the U.S. Senate for gun safety legislation would create incentives for states to pass so-called red flag laws, it’s unclear how responsive Republican governors and legislators will be in taking Congress up on that offer.

GOP leaders in some states have already signaled their opposition to the laws, which provide a pathway for authorities to temporarily seize firearms from people considered to be threatening. There’s also latitude in how red flag laws can be designed, with some more strict than others. What steps Congress will take in trying to establish standards for states to follow with the policies is not yet certain.

In the meantime, whether lawmakers can even reach a deal that can clear the Senate remains uncertain as negotiators are still working on an actual bill text. But, as it stands, a key part of the agreement announced over the weekend would provide federal grants to encourage the 31 states that have not passed red flag, or “extreme risk,” laws to do so. 

In 19 states, those laws enable police, and in some cases family members, co-workers and school officials, to petition courts to have someone’s guns taken away for set periods of time if they are deemed to be a danger to themselves or to others.

Already though, at least two Republican governors have suggested that the laws could trample people’s constitutional rights. 

A spokeswoman for Nebraska Gov. Pete Ricketts declined to speak specifically about the bill Congress is considering.

But Ricketts said last year that he opposed red flag laws “because they would violate the due process rights of gun owners.”

Earlier this month, a spokesman for Ohio Republican Gov. Mike DeWine told Route Fifty that the governor also has concerns about the laws based on due process. On Monday, DeWine was focused on a different type of gun legislation, signing a law that will clear the way for educators to carry firearms in school after 24 hours of training.

In another solidly Republican state, a spokesman for South Dakota Gov. Kristi Noem pointed out that Lt. Gov. Larry Rhoden, testifying on behalf of the governor, expressed opposition to a red flag proposal before a legislative committee in 2020.

"The express purpose of red flag laws are to deprive individuals of their liberty and property interests, specifically the right to own and use firearms," Rhoden said, the Sioux Falls Argus Leader reported at the time.

"While these laws may be well-intended, we cannot disregard our constitutional rights and reverse more than 200 years of legal history for legislation that will not prevent dangerous individuals from causing harm to others," Rhoden added.

Meanwhile, Louisiana Democratic Gov. John Bel Edwards did endorse creating a red flag law in his state during a press conference last week. “If it's true that guns don't kill people, people kill people,” Edwards said, “we should make sure the wrong people don't have guns.”

However, the state’s lawmakers have proposed making it easier to have guns by eliminating a requirement to have a permit to carry a firearm in public. And Edwards recognized that there may not be support for red flag laws in the Republican-controlled legislature.

“Truth is, I don't know,” he said.

One leading gun control advocate, Mathew Littman, executive director of the bipartisan gun safety group 97 Percent, acknowledged in an interview that not every state will pass red flag laws even with the newly proposed—but as yet unspecified—federal incentives in place.

Still, he said even some states with Republican governors might back them, noting that Florida passed such a law after a gunman in 2018 killed 17 people at Marjory Stoneman Douglas High School in Parkland, Florida. 

Senate Majority Whip Richard Durbin, an Illinois Democrat, shared a similar sentiment. 

“Nineteen states have already passed them including Florida, with Gov. [Ron] DeSantis [a Republican],” Durbin told Route Fifty. “It’s not a red state versus blue state issue.”

Nico Bocour, government affairs director for the Giffords Law Center, noted that the Parkland shooting seemed to have shifted the political landscape around red flag laws, and that since then eight states passed the laws, five of them Republican leaning.

Still, Bocour said some governors “haven't found the courage to do the right thing." 

But she added that the recent mass shootings in Buffalo, New York and Uvalde, Texas, along with the bipartisan support in Congress for the laws, could make it harder for opponents “to hold the line in opposing such a well supported policy.”

The bipartisan Senate framework does not go as far as some gun control advocates want, leaving out measures like universal background checks and bans on certain types of high-powered rifles. 

But advocates say that expanding red flag laws could help to reduce gun deaths, including the thousands of suicides each year in the U.S. that involve firearms. In 2020, 54%, or 24,292, of all gun-related deaths in the U.S. were suicides, according to the Pew Research Center.

“It’s a step in the right direction,” Littman said.

Aides to senators involved in the negotiations did not return press inquiries. But it appeared that the deal will attempt to address a main concern about due process with red flag laws: How high to set the burden of proof law enforcement must meet to take away a gun. 

Joseph Blocher, co-director of the Duke Center for Firearms Law, said that a statement released by the senators appears to indicate that they plan to leave it up to states to set these standards.

States with red flag laws have a variety of requirements. These range from lower legal bars, like “reasonable doubt,” to the stronger ones, like “clear and convincing evidence.”

The statement released by the senators about the framework says the forthcoming legislation would provide resources to states and tribes to create and administer firearms laws, as long as they are “consistent with state and federal due process and constitutional protections.”

“I suspect they’re saying: Do what you want, so long as it meets the requirements of due process,” Blocher said. 

Bocour agreed that it appears that the senators are envisioning giving states flexibility in defining how easy or difficult they make it for authorities to seize guns under their firearms safety laws.