In the aftermath of the Buffalo, Uvalde, and Highland Park mass shooting incidents, the topic of red flag laws has been front and center. But what is a red flag law and what are they designed to do?
Red flag laws explained
A red flag law is defined as a regulation that permits states to issue extreme risk protection orders that would allow the police or other government agency to seize firearms from owners who have been officially classified as someone who has a high risk of harming themselves or others.
Does Pennsylvania have any red flag laws?
No. Members of the Pennsylvania General Assembly have tried and failed to pass red flag laws. After the Uvalde school shooting incident, members of the General Assembly pursued a discharge petition to get the pending red flag bill out of committee. That attempt was also unsuccessful.
What’s the difference between red flag laws and existing laws in Pennsylvania?
Under existing laws, people who have been involuntarily committed for mental health treatment, have been convicted of domestic violence offenses, or are subject to a protection from abuse or restraining order are already prohibited from possessing a firearm. More specifically, when a person has been charged with a domestic violence offense, Pennsylvania law makes it so that the police are required to seize any weapons that are alleged to have been used in the offense. With a red flag law, police would be directed to seize the person’s firearms.
Does the Supreme Court’s decision in the New York State Rifle & Pistol Association v. Bruen case prevent Pennsylvania from enacting a red flag law?
The New York State Rifle & Pistol Association case didn’t say anything directly about laws that would allow the state to seize a person’s firearms. The case also didn’t get into the question of restricting firearm access for people who are considered to be at risk of harming themselves or someone else. It’s possible that the Court may take up a similar case in the future, but even the conservative wing of the court has consistently upheld laws that prevented people who suffer from a mental illness that increases the likelihood of them harming themselves or others and laws that restrict access to people who have been convicted of certain crimes.
Are red flag laws unconstitutional?
So far, the United States Supreme Court hasn’t ruled on the question of whether red flag laws are unconstitutional. While the Second Amendment says that the right to bear arms can’t be infringed, it doesn’t say that the government can’t pass reasonable regulations. In states where the red flag laws aren’t sufficiently specific in defining dangerousness or the level of risk a person has to show before the state can seize their weapons, the law may be unconstitutionally vague.
What are the pros and cons of red flag laws?
The pros of red flag laws generally involve protecting life and safety. Under most red flag laws, a person’s firearms can’t be removed until they’ve had the chance to have a hearing. The laws require the state to show that the person has a special risk of hurting themselves or someone else before the firearms can be seized. The flip side of this is that red flag laws allow the government to take someone’s property without needing proof that they have already done something illegal. The Heritage Foundation pointed out that red flag laws evoke thoughts of “Minority Report” and the idea of pre-crime. So, a con for the idea of red flag laws is the risk of punishing someone for something that they haven’t done yet.
In states that don’t have a red flag law, there isn’t much that the state can do to seize firearms from a person who appears to be a danger to himself or others but hasn’t been involuntarily committed or is otherwise subject to a PFA. In many mass shooting incidents, the person involved in the shooting incident has often shown signs that they could be a danger to others but were able to legally obtain guns and ammunition. The potential corresponding con in this scenario is that red flag laws arguably won’t do anything to prevent a person from getting an illegal gun and following through with their planned assault.
In what ways have red flag laws gone wrong?
According to the Heritage Foundation, many states that have implemented red flag laws haven’t done enough to protect the due process rights of the person whose firearms are being seized. Heritage also pointed out that many laws don’t give the person an opportunity to prove that they are no longer dangerous and have their weapons returned.
What does the new, federal Bipartisan Safer Communities Act do to enact red flag laws?
Technically, the new law doesn’t do anything to enact federal or state red flag laws. The Bipartisan Safer Communities Act does offer funding to help states implement their own red flag laws.