Recently, though, several Republican leaders have openly discussed the possibilities of enacting a “red flag” law, also known as extreme risk protection orders.
Seventeen states and the District of Columbia have passed the law in some form. Red flag laws allow courts to accept petitions requesting that firearms be confiscated because owners display “red flags,” signs that they may use their guns to harm others or themselves.
At a press conference after the shootings in El Paso and Ohio, President Trump called for red flag laws, saying, “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.”
Several Texas lawmakers have also called for discussions about potential red flag laws, whether federally or on the state level.
Representative Dan Crenshaw (R-TX-2) recently tweeted out a suggestion to consider state red flag laws. His tweet drew widespread criticism from those concerned about such laws infringing on their constitutional rights.
A few days later, he posted a video clarifying his intention. “Clearly even the words ‘red flag law’ just emotionally triggered a lot of people,” said Crenshaw. “Understandably, you automatically assume that we are just agreeing with the left’s version of that law.”
Like the intentions behind many of the existing red flag laws, Crenshaw stated that he is talking about “the ability to confiscate weapons when there is clear evidence that violence is about to be committed.”
He said that the primary difference between what he wants to see and those he opposes is the protection of due process. Citing the Cato Institute, Crenshaw argued that there are some mechanisms that can be included in such laws to respect citizens’ Fifth Amendment rights.
Such mechanisms include punishment for false accusations, limiting who can file a petition against someone, and a right to an attorney.
He also emphasized that he was only trying to start a conversation, not endorse a particular law.
In a statement provided to The Texan, Crenshaw said, “In the wake of the El Paso and Dayton shootings, I feel that it is my duty, as someone very knowledgeable about how firearms operate, to foster a reasonable, candid conversation about how we combat mass shootings, but also ensure we do not infringe on the rights of law-abiding Americans.”
“It’s clear that the solution is not simple and that policy proposals on this issue will always have a strong emotional component,” Crenshaw added. “Are red flag laws part of the solution? We don’t know yet, but they should be part of the conversation. We have to get past the heated rhetoric and work together to find the best way to better protect our communities and our country.”
Other Texas Republicans are also willing to consider such laws but want to approach them carefully.
A spokesperson from Senator Cruz’s office told The Texan, “Sen. Cruz believes red flag laws are one of the tools states can consider, but that there are dangers depending on how a state structures these laws. He believes that if a state does adopt a red flag law it needs to make sure it is protecting due process and our constitutional rights. He will look closely at the legislation written by his colleagues and believes we have to do more to stop these terrible tragedies.”
Last year, Governor Greg Abbott encouraged the legislature to consider the possibility of red flag laws.
After Gov. Abbott’s encouragement, Texas State House Representative Joe Moody (D-El Paso) had drafted a red flag bill. His legislation would allow family or law enforcement to file a petition to have the owner’s weapon confiscated.
About the bill, Moody stated, “This mirrors arrest and search warrants today, except we plan to include even stronger due process, with a full-blown hearing (including a mental health exam) following almost immediately after that short-term order, and of course, a right to appeal.”
However, Lieutenant Governor Dan Patrick shot down the red flag law proposals, reportedly stating, “Regarding the topic of ‘Red Flag’ laws, which was discussed today in the select committee, I have never supported these policies, nor has the majority of the Texas Senate.”
After President Trump’s suggestion of red flag laws, Patrick reiterated his position on a Fox News interview, arguing that it would be difficult to write a red flag law that actually addresses the concerns about due process. “Are we going to have ex-spouses say ‘I don’t think this person should have a gun,’ or angry neighbor, or an angry employer, or an angry boss?” he asked.
Instead of red flag laws, Patrick proposed an alternative way to address mass shooting concerns, saying, “I think the universal background checks being strengthened are an issue that I think we can coalesce around more.”
Ultimately, though, he said the problem is much larger than can be addressed by one particular law. “It’s not just about mental health. It’s not just about guns. It’s our culture.”
Representative Louie Gohmert (R-TX-1) made a similar statement in an interview with KETK: “John Adams was so right. ‘This Constitution,’ he said, ‘was intended for a moral and religious people. It’s totally inadequate to govern any other.’ And that’s where we are. If we’re not going to get back to teaching against jealousy, and to teach true, absolute right and wrong, then we’re going to have to give up [many of our constitutionally protected] rights, and I don’t want to do that. I don’t want to give up any of the rights. I think we need to get back to teaching true right and wrong.”
Gohmert said in the interview that “there are red flag laws that could be very appropriate,” but like the other Republicans, he also expressed concerns about due process.
All of the Democratic presidential candidates from Texas—Julián Castro, Beto O’Rourke, and Marianne Williamson—advocate for red flag laws.
Castro recently announced his “People First Plan to Disarm Hate” in response to the atrocity in El Paso. The scope of his plan is broad, including both plans to combat domestic terrorism and plans aimed to “end the gun violence epidemic.”
While the last plank Castro advocates are the creation of red flag laws, he also calls for the registration of “assault weapons” and a buyback program for them. Other policies he supports are universal background checks, requiring a license to purchase firearms, and prioritizing mental healthcare.
Likewise, Beto O’Rourke supports red flag laws in addition to universal background checks and the banning of the sale of “assault-style weapons like AR-15s.”
The majority of the states enacted red flag laws fairly recently—a dozen of the seventeen states enacted them after the shooting in Parkland last year. Consequently, there is still little measurable data on the effects of such laws.
However, Indiana and Connecticut have had their laws in place for over a decade.
One study that is frequently cited with respect to red flag laws found that the laws led to decreased suicides by firearm in both states.
The study estimates that in the ten years after the law passed in Indiana, the firearm suicide rate was reduced by 7.5 percent. Similarly, in the years after Connecticut’s law was enforced, the rate was reduced by an estimated 13.7 percent.
It is important to note that the study found that during the same time periods, the rate of non-firearm suicides increased in both states. While the increase in Indiana was not nearly as drastic, the increase in non-firearm suicides in Connecticut completely eclipsed the reduction in firearm suicides.
As the study admits, the differing results in each state could be caused by a variety of other factors that the researchers were unable to take into consideration (e.g. other gun laws, how each state executes its red flag law, and other factors that might contribute to suicide rates).
With multiple versions of red flag laws now in place across multiple states, time and more in-depth studies may begin to reveal the effectiveness or ineffectiveness of such regulations.
Until then, lawmakers will continue to weigh the costs and benefits of red flag laws, considering whether they want to push legislation that might reduce gun-related deaths or risk infringing upon the due process and Second Amendment rights of their constituents.
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Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.