We have urged states to consider such laws. But the federal level is a different matter.
W hen the Senate returns from its break next week, its members intend to discover if there are any gun-control measures on which 60 senators can agree. Bipartisan talks are underway. They usually amount to nothing in this area — appropriately — but there is more buzz about their seriousness this time, with much of it around so-called “red flag” laws. These laws trigger the temporary confiscation of firearms when an individual is deemed a threat to himself or others.
We have urged states to consider such laws. If carefully crafted, they can provide law enforcement and families a tool to potentially prevent a disturbed person from acquiring firearms to carry out a devastating attack.
But the federal level is a different matter. First of all, our constitutional system expressly separates the responsibilities of the federal government and the responsibilities of the states, and, absent an amendment that empowers it do so, the federal government lacks any authority to remove legally owned firearms from individuals whom it suspects may be dangerous at some point in the future. If one squints, one can find in the Commerce Clause certain powers to regulate the transportation, importation, and interstate sale of firearms. One cannot find the power to superintend their possession. Under no circumstances should that power be claimed.
Legalities aside, it would be a mistake for the federal government to try to create and administer a red-flag system itself. If such laws are to work effectively, it will be because the government that administers them inspires confidence and is close and accessible to the people availing themselves of the laws. There is far too much distance between the federal government and the citizenry for this to work at a national level. There is a reason that Florida’s red-flag law — which was passed after the 2018 Parkland shooting — is run on a county-by-county basis, and administered by local police, and that reason is that, in this matter, local is better. The FBI is not set up to execute such a system, and the federal courts are not set up to adjudicate it. And, even if they were, Americans would be right to oppose elevating yet another question to the national level.
After the last few years, especially, it is not irrational for the citizenry to worry about putting such a sensitive power in the hands of people (i.e. Joe Biden) who are on record arguing that they shouldn’t be able to own mainstream firearms in the first place. It is likewise not irrational for the citizenry to mistrust the capacity of the FBI and the federal bureaucracy to keep political bias out of the process. It was only two weeks ago that this administration was laboring to wield a mass shooting in Buffalo as a club against anyone who watches Tucker Carlson or frets about the demographic impact of immigration. The last thing America needs is one more fundamental right whose security varies by who wins the next presidential election.
Reports suggest that the bipartisan talks are focusing much more modestly on grants to the states for red-flag laws rather than a federal red-flag law itself. There isn’t a need for any federal involvement in this area, but if Congress is going to hand out funds for this purpose, it should write clear guardrails that make sure the flow of funds can’t be abused and that it only goes to state programs that have robust protections for due process. Senators Marco Rubio and Rick Scott have had a proposal with bipartisan backing to incentivize the adoption of state laws similar to Florida’s.
As we’ve said, there is no magic solution to mass shootings. Congress can only make mistakes if it pretends otherwise.