Graham, Blumenthal say they're making progress on "red flag" talks

Discussions centered around offering grants to states that impose “red flag” firearm seizure laws are slowly progressing, according to Republican Lindsay Graham and Democrat Richard Blumenthal, who first teamed up to push the federal gun control legislation in 2019. CBS News reported on Wednesday that the pair have had multiple discussions around potential changes to their previous legislation with an eye towards attracting at least 10 Republicans, which would allow the bill to overcome a potential filibuster.

According to the CBS report, there are a few potential hangups, but not nearly as many as there should be (in my opinion, anyway).

At this stage, their updated proposal would focus on establishing federal grants for states to create or bolster “red flag” laws. A “red flag” law, in most instances nationwide, enables law-enforcement officials to temporarily seize firearms from individuals who are seen as threat to themselves or other people, if given a court order to do so.

The remaining challenge for Graham and Blumenthal is crafting legislative language on due process and judicial review that does not push wary Republicans away, while also not appearing to overly soften their initial bill and frustrate Democrats.

One person familiar with the discussions said Graham and Blumenthal are working on provisions that would be acceptable to both parties, particularly when it comes to the timeline between a court order prompted by evidence of “extreme risk” and a hearing. The scope and type of evidence required are also under discussion.

A couple of things to keep in mind here that the CBS report (not to mention Graham and Blumenthal themselves) gloss over. Typically, a “red flag” law (or Extreme Risk Protection Order) involves two hearings; an initial hearing where the subject of the petition likely isn’t present or even aware that it’s taking place (and is therefore unable to present any evidence contrary to those of prosecutors), and a follow-up hearing typically held a week or two later on a final order in which the subject is finally able to tell their side of the story.

The evidentiary standard is also lower in most red flag laws than what would be used in a criminal proceeding, and because these are civil matters those subject to an ERPO petition are not entitled to a court-appointed attorney if they cannot afford one of their own.

Another issue with red flag laws is the lack of mental health resources for those deemed by a judge to be a danger to themselves or others. None of the 19 red flag laws on the books in various states require the state to help that supposedly dangerous individual find treatment or counseling, and only Maine’s version of a red flag law requires a mental health evaluation from a medical professional in addition to a judge’s determination.

The result is that truly dangerous people are still left to their own devices, with continued and unfettered access to knives, pills, poison, rope, as well as any firearm they might be able to obtain illicitly through theft or a black market sale.

The effectiveness (or the lack thereof) of red flag laws in reducing suicides is also questionable. States like Connecticut and Indiana, which have had the laws on the books for the longest period of time, have seen overall suicide rates increase since the law went into effect, and a study of Connecticut’s law found that just one suicide was prevented for every 10 to 20 seizures of firearms. Some individuals may go on to commit suicide even after their guns have been seized, but there are also undoubtably others who never posed a threat to themselves or others in the first place who were still subject to a “temporary” seizure of their lawfully-possessed firearms.

Red flag laws are ultimately a gun control solution to a mental health problem, which is one of the reasons I continue to oppose them. They do nothing to stop truly dangerous individuals from harming themselves or others, but they do allow lawmakers to avoid addressing our crumbling mental health systems by claiming they’re “doing something” to block dangerous people from doing bad things. Maybe Graham and Blumenthal’s final proposal will find a way to address each and every one of these fundamental flaws, but I’m not holding my breath.