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Senators are considering a national ‘red flag’ law to prevent future mass shootings. Here’s how that legislation works

May 26, 2022, 6:59 AM UTC

U.S. politicians are again trying to find a path forward for gun legislation after the deadly school shooting in Uvalde, Texas, on Tuesday.

Senators have said they are exploring the possibility of introducing a national “red flag” law, which would allow law enforcement officials to confiscate firearms from individuals a court deems to be dangerous. 

Sen. Joe Manchin (D-W.Va.), a key swing vote, said that he’s talked about such legislation with his fellow senators. Red-flag legislation “works in states such as Florida. It’s been very effective,” he said. Sen. Susan Collins (R-Maine) has said that she is in discussion with Democratic senators like Chris Murphy of Connecticut about the possibility of new red-flag laws.

Several Republican senators, like Rick Scott (R-Fla.) and Mike Braun (R-Ind.), told Axios that they would be open to a federal red-flag law, though said they would prefer to leave such decisions to individual states. 

According to a Reuters/Ipsos poll released yesterday, 70% of Americans support red-flag laws, and, on Wednesday, House Majority Leader Steny Hoyer said he would bring a proposal by Rep. Lucy McBath (D-Ga.) to establish a national red-flag law to a vote in the beginning of the House’s June working session. 

What is a red-flag law?

A red-flag law is shorthand for a type of gun legislation that grants law enforcement the authority to temporarily take guns away from someone who exhibits concerning behavior. That red-flag behavior could include a known gun owner issuing specific threats to do harm or demonstrating signs of suffering serious mental illness.

Under a red-flag law, law enforcement officers and, in some states, family members can petition a state court to pass an order to remove firearms from an individual who exhibits red-flag behavior and bar them from purchasing new ones. Removal orders are not permanent, usually expiring after a year, though officials can petition to have them extended. 

As of now, the District of Columbia and 19 states—both Democratic and Republican, including Oregon, California, Florida, Indiana, and Massachusetts—have passed some form of a red-flag law. Connecticut was the first state to pass such a law in 1999, after a shooting at its state lottery headquarters. Other states passed red-flag laws in the wake of the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Fla.

Most states have issued a few hundred orders to remove firearms since passing their red-flag laws. Florida has used its red-flag law over 5,800 times since passing it in 2018.

In contrast, one state, Oklahoma, has an “anti”–red-flag law, passed in 2020, which prevents the state or any local government from enacting a red-flag law, or accepting funds to enact such a law.

Do red-flag laws work?

Proponents of red-flag laws argue that several of the perpetrators of the U.S.’s worst school shootings all exhibited warning signs that could have been recognized early on and that, if the states where those shooters lived had passed red-flag laws, those red flags could have been used to petition for the removal of the perpetrator’s firearms.

In 2018, the office of Arizona Gov. Doug Ducey argued that a red-flag law would have prevented shootings like Columbine, Sandy Hook and Virginia Tech. (Ducey later said he would not pass such a law in Arizona.)

But just because a state has a red-flag law doesn’t mean the provision will be effective in practice.

New York passed a red-flag law in 2019 that allows school administrators as well as family members and law enforcement officers to request a risk prevention order. The person responsible for the mass shooting in Buffalo on May 14 was referred for a psychiatric evaluation last June after he said for a school project that his plans involved committing a murder-suicide. That declaration should have been a red flag.

Yet New York police chose not to file a petition under the state’s red-flag law. While New York police did not give a specific reason as to why, they noted that the threat made was general in nature, rather than targeting any specific person. Subsequently, New York Gov. Kathy Hochul signed an executive order on May 18 requiring state police to file a petition if they had probable cause to suspect “conduct that would result in serious harm.”

Red-flag laws can seemingly prevent more than just potential mass shootings, too. A 2018 study argued that the state of Indiana saw a 7.5% reduction in firearm suicides in the 10 years following the passage of its red-flag law in 2005.

But Allison Anderman of the Giffords Law Center to Prevent Gun Violence told the Associated Press that, although research shows red-flag laws have worked, ultimately, “it’s very hard to prove a law is effective based on things not happening.”

Will a national red-flag law pass?

This is not the first time senators have suggested installing a national red-flag law. After mass shootings in San Antonio and Dayton, Ohio, in 2019, Senators Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.) worked together to propose a national red-flag measure. 

Then President Donald Trump also endorsed measures to confiscate firearms from those deemed to be dangerous, saying that “we must make sure that those judged to pose a grave risk to public safety do not have access to firearms and that if they do, those firearms can be taken through rapid due process.”

The measures proposed in 2019 did not attract the 60 votes needed to end a filibuster.  

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