Multiple media outlets are reporting that the negotiations between a group of Democratic and Republican senators has yielded an agreement, expected to be officially unveiled today, on a legislative response to the shootings in Buffalo, New York and Uvalde, Texas.
According to the reports, the package includes “substantial” investments in both mental health and school security, as well as two gun-related measures; one including juvenile criminal records in the background checks performed on gun buyers under the age of 21, and the second a federal grant program to “encourage” states to adopt “red flag” firearms seizure laws.
The ideas are still frameworks, with specific legislation yet to be written, and according to POLITICO, there may be a broadening of the current prohibitions on gun ownership to include those convicted of domestic violence crimes against a dating partner, and not just a spouse or family member. And while the ten-or-so senators working on an agreement may have made a deal, they’re still going to need buy-in from at least four other Republicans.
While Sunday’s announcement is a major breakthrough, translating a framework into an actual bill often proves challenging. During last year’s bipartisan infrastructure negotiations, for example, more than six weeks passed between negotiators’ announcement of a framework and Senate passage of the resulting bill. And a GOP aide involved in the negotiations stressed that Sunday’s agreement was an “agreement on principles, not legislative text.”
“The details will be critical for Republicans, particularly the firearms-related provisions,” the aide warned. “One or more of these principles could be dropped if text is not agreed to.”
While the nascent framework is modest compared to Democrats’ long-running push for expanded background checks, it could result in a high-water mark for GOP support for any level of gun restrictions. And at the moment, it’s the closest the chamber’s been to a broader gun safety deal since 2013, when Manchin and Toomey wrote bipartisan legislation in response to the 2012 mass shooting at Sandy Hook Elementary School.
Most Republicans and a handful of Democrats blocked the Manchin-Toomey legislation. And while the Senate tried again in 2019 to reach a deal after mass shootings in El Paso, Texas, and Dayton, Ohio, then-President Donald Trump disengaged amid the House impeachment inquiry. The most significant recent new gun law came from Murphy and Cornyn, which strengthened the background check system.
Democrats would have preferred to expand background checks to more prospective gun buyers and ban assault rifles, though those moves lack the necessary support among Republicans. A handful of Republicans are supportive of raising the age to purchase assault rifles to 21, something Senate Minority Leader Mitch McConnell has expressed personal openness to, but neither McConnell nor Cornyn have pushed that as part of the package, and the idea may not get the 60 votes needed to survive a GOP filibuster.
I suspect that support for inclusion of juvenile records in background checks for adults younger than 21 won’t be too hard to find, but the “red flag” language is going to be a sticking point for many Republicans in the Senate, as the Washington Post reported just a couple of days ago.
State laws have differing due-process standards, and the Senate negotiators have been seeking to work out those details to the satisfaction of a critical mass of Republicans. Rep. Salud Carbajal (D-Calif.), who sponsored the House measure incentivizing states to act, said similar legislation would “provide the foundation” for a Senate deal. “They are considering a few other things that are a little bit more challenging to get consensus on, but the red-flag bill is one that they seem to have more consensus,” he said.
But conservatives appear intent on undermining that consensus. Sen. Steve Daines (R-Mont.) said Thursday that states are free to pursue red-flag laws if they wish, but “this should not be something Congress needs to meddle in.”
Daines, who is seeking to chair the Senate Republican campaign committee for the 2024 election cycle, added, “Many of our states are swimming in money right now after we shoveled $7 trillion of covid money out the door, so money is not the issue. The states can do this if they think it’s the best thing they should be doing.”
Other conservatives who voiced opposition included Sen. Bill Hagerty (R-Tenn.), who noted a red-flag law in New York did not prevent the May 14 mass shooting in a Buffalo supermarket that left 10 dead, as well as Sen. Roger Marshall (R-Kan.), who called any red-flag provision a “poison pill” for any Senate deal. “I don’t see how a red-flag law passes up here,” he said. “I think it’s an infringement on the Second Amendment, and just like I’m standing up and fighting to protect our freedoms of speech and our freedoms of religion, I’m going to stand up and protect our Second Amendment.”
Expect the biggest fights in the days ahead to be over incentivizing states to adopt these laws, which are already in place in 19 states around the country. While most of the criticism about the “Extreme Risk Protection Orders” focuses on due process concerns, I’m not going to reiterate those objections here, other than to note that ex parte hearings aren’t the only issue. The fact that public defenders are not offered to those subject to a red flag petition if they can’t afford to hire an attorney is also a huge problem, and one that ensures many of those individuals are at a sizable disadvantage when their day in court finally arrives.
Even if those due process issues are addressed to critics’ satisfaction (which isn’t likely to happen), there is another fundamental and inherent flaw embedded within red flag laws: a lack of mental health counseling or supervision. Red flag laws “treat” a supposedly dangerous person by taking away (for up to a year in some cases, though red flag orders can also be extended with a new hearing) their ability to legally own a gun. That’s it. That’s supposed to fix the problem of someone being a danger to themselves or others.
I think many people have a false impression of what “red flag” laws are all about; that they’re some sort of less severe version of an involuntary commitment, which results in a lifetime prohibition on gun ownership. They’re not. Even Maine’s “yellow flag” law only requires a mental health professional to be involved in the finding of dangerousness (which in itself is a vast improvement over traditional “red flag” laws) but even if that professional determines that someone is a danger to themselves or others, there is no help offered or mandated anywhere in the law.
“Red flag” laws are not about treating or even monitor the person deemed too dangerous to own a gun. Not too dangerous to own knives, gasoline and matches, belts, ropes, or anything else they might use to harm themselves or others mind you. Just a gun. Red flag laws take their ability to lawfully own or purchase a firearm away from them, as well as any guns they might have in their possession, but they typically do nothing to treat the underlying and most important issue; the supposed dangerousness of the individual.
I’m not a fan, as you can tell, though I understand that these laws poll well with the general public. Their popularity doesn’t mean they’re actually useful, however, except maybe for politicians looking for a chance to say they did “something” and gun control activists looking to chalk up something they can count as a win.
Both of those factors are very much at play at the moment, and with the Senate set to adjourn for two weeks on June 24th, there’s going to be a big push to get to 60 votes in the next couple of weeks. While many Senate Republicans will simply balk at the inclusion of any red flag language, I suspect that there’ll be enough on the fence or in support in principle that the devil in the details of the “red flag” grants could very well be the deciding factor in the bill’s ultimate success or failure.
Well, the odds of any of those devils derailing the package have dropped considerably after the agreement was formally released with the names of ten Republican senators attached.
The group on the release includes Republican Sens. John Cornyn of Texas, Thom Tillis and Richard Burr of North Carolina, Roy Blunt of Missouri, Bill Cassidy of Louisiana, Susan Collins of Maine, Lindsey Graham of South Carolina, Rob Portman of Ohio, Mitt Romney of Utah and Pat Toomey of Pennsylvania. Democratic senators on the release include Kyrsten Sinema and Mark Kelly of Arizona, Chris Murphy and Richard Blumenthal of Connecticut, Cory Booker of New Jersey, Chris Coons of Delaware, Martin Heinrich of New Mexico, Joe Manchin of West Virginia and Debbie Stabenow of Michigan. It also includes Sen. Angus King of Maine, an independent who caucuses with Democrats.
… One source with knowledge of the discussions said negotiators were hoping to get 10 Republican senators to sign on to the agreement before it was announced, in order to show they can overcome the 60-vote filibuster threshold. The Senate is currently evenly divided between the Democratic and GOP conferences with 50 seats each.
The four main Senate negotiators – Murphy, Sinema, Cornyn and Tillis – were in talks all weekend to hammer out the final details and have also been in discussions with a larger bipartisan group of negotiators.
Schumer says he’s going to bring the package to the floor “as soon as possible,” which means we could see a vote at some point this week.
Gun control groups are already signaling their support, while the reactions from 2A organizations range from “we’ll see what’s in the final bill…”
(2/3) As is our policy, the NRA does not take positions on "frameworks". We will make our position known when the full text of the bill is available for review.
— NRA (@NRA) June 12, 2022
… to what I’m gonna take as a hard “nope.”
Fuck you. No.
— Firearms Policy Coalition (@gunpolicy) June 12, 2022
Of the 10 Republicans who signed on to the agreement, four are retiring this year (Burr, Portman, Bount, and Toomey), and Collins, Romney, and Graham have all long been more “moderate” in their support for the Second Amendment. Tillis said early on that he was open to making changes to the existing laws, and Cornyn’s support isn’t surprising either, given that he was leading the Republican side of the negotiations, but I hadn’t heard much about Bill Cassidy during the negotiations. Apparently, though, he and Chris Murphy have been working on a separate youth mental health bill, and he expressed an openness to something on both “red flag” laws and background checks a couple of weeks ago.
U.S. Sen. Bill Cassidy said he was open to some discussions on ways to prevent shootings like red flag laws and expanded background checks in the wake of Tuesday’s school shooting in Uvalde, Texas, during a live video discussion on youth mental health hosted by the Washington Post on Wednesday.
Cassidy, who joined Democratic U.S. Sen. Chris Murphy of Connecticut, said that federal red flag laws and an expansion of required background checks on firearm sales are is “certainly something to discuss,” though he stopped short of endorsing specific measures.
“We have to do what is required that we can find 60 votes on to keep this from happening again,” Cassidy said.
Cassidy was quick to praise Murphy, who represents Connecticut and delivered an impassioned speech on the senate floor after the shooting Tuesday, for his work on gun control and youth mental health. The two were initially slated to speak with Washington Post Live about their bipartisan youth mental health bill, but the shooting dominated the early part of the conversation.
Cassidy did not express support for other potential gun control measures, such as bringing back the 1994 Assault Weapons Ban imposed under the Clinton Administration. Cassidy said he’s seen research on the ban claiming that it had “no effect,” but Murphy said he had a different take on the research.
Notably, “assault weapons” aren’t included in the package, which gives both Republicans and Democrats something to point to between now and November. Republicans who vote for the bill can honestly say they kept any gun bans out of the legislation, while Democrats can point to their absence as a reason to send them back to D.C. to finish the job. As for whether or not this actually results in any substantive efforts to prevent targeted attacks, I’m not optimistic, and my concerns about the “red flag” provisions still stand.