No passion so effectually robs the mind of all its powers of acting and reasoning as fear.
–Edmund Burke, 1757
Fear may serve as an effective motivator for individuals facing danger, but as a basis for law-making, it consistently leads to poorly crafted legislation and even dangerous public laws. So it is with gun control, a path on which a bipartisan group of Senators appears now committed.
Fear of domestic terrorist attacks following the 1995 Oklahoma City bombing and of further foreign terrorist attacks after 9-11, led directly to laws that demonstrably were far broader than necessary to address whatever shortcomings those incidents revealed, and which have seriously eroded individual liberty in the years since.
In the current frenzy to guard against tragic mass shootings such as occurred last month at an elementary school in Uvalde, Texas, federal lawmakers appear ready once again to use “fear” as a motivating force for legislative action. This week a bipartisan coalition of lawmakers, led by Texas Republican John Cornyn and New York’s perennial gun control orchestrator Chuck Schumer, announced a framework for a gun control package aimed at easing the minds of “families [who] are scared.”
Details beyond the initial framework are sparse, but we do know the bill seeks to tackle mass shooting violence by recycling many of the familiar policies of gun control past – red flag laws, “boyfriend” loopholes, and deeper background checks. There does appear to be some attention being afforded to mental health and school safety programs, but initial information indicates these will not be among the legislation’s main priorities.
Begin with the enhanced background checks for gun buyers under 21 years of age. The proposal rests on the questionable ability for the FBI to access juvenile arrest and mental health records, and the ability to connect with various state databases. System architecture challenges aside, juvenile records are typically confidential (for reasons championed by both the Left and Right) and are unlikely to legally be fair game for federal background checks. Verdict: Implausible.
Next, closing the “boyfriend” loophole. Ignoring the trope of yet another non-existent “loophole” in gun laws, the reason the law as currently established considers marriage, cohabitation, or a shared child as bases for denying firearms to individuals with criminal records, is to provide a degree of objective measure as to the seriousness of a personal relationship. Fake or exaggerated allegations of abuse or sexual assault are already a problem in the dating process, without adding a new tool for revenge: depriving a person of his or her Second Amendment rights. Verdict: Dangerous.
Most importantly, there is the issue of so-called “Red Flag laws” (more technically, “Extreme Risk Protection Orders”). As I have noted previously, Red Flags are a crowd-pleaser as a tool to prevent mass shootings, but they often are written in such a way that abuse of individual rights is likely, if not encouraged. Broadly drafted, as many are, the laws permit nearly anyone to enlist local law enforcement and a judge to seize a person’s firearms based on “fear” the individual may in the future commit a bad act with a gun.
The threshold for issuing a Red Flag order is incredibly low, and entirely subjective. Florida, just one state among the 19 (plus the District of Columbia) that have enacted such laws already, has issued nearly 9,000 firearm protective orders since 2018.
Moreover, the due process remedy available for defending against these ex parte orders is often not clearly defined, leaving the gun owner with little to no legal recourse for restoring his or her Second Amendment rights, and leaving him or her with what is essentially a serious blemish on their record.
Unless the red flag provisions are very narrowly tailored and written to reflect individuals’ constitutional rights (something Democrats appear unwilling to do), all that will have been created by Uncle Sam giving money to states to enact such laws, is to create yet another and extremely powerful tool by which law enforcement and judges are able to summarily deny rights expressly guaranteed by our Constitution. Verdict: Very dangerous.
That leaves the only workable “solution” of this latest bipartisan framework on a gun “deal,” to be funding for mental health and school safety. However, when I read that the proposal proposes to spend taxpayer dollars establishing “Certified Community Behavioral Health Clinics,” as a panacea for deeply troubled young men prone to violence, it is hard to take any of this seriously.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.