What are the ‘red flag’ gun laws getting bipartisan attention from DC and NC?
Following a series of recent mass shootings, including one at an elementary school in Uvalde, Texas, politicians in Washington have indicated there may be bipartisan support in Congress for stricter gun laws — as long as they don’t go as far as proposals like universal background checks or banning assault weapons.
One proposal under consideration is known as a “red flag” law.
The news comes as polls show that most Americans support the Second Amendment but also believe there should be higher barriers to gun ownership.
So what are red flag laws, and where do they fit in the gun control debate?
Red flag laws could focus on mental health
There are many differences in the details among various red flag laws, but in general, they’re an attempt to keep guns out of the hands of people who are deemed to be a threat.
That threat could be to others, or to themselves.
Numerous academic studies, including one from Stanford University as recently as 2020, have found that people are far more likely to die by suicide if they own a gun than if they don’t.
Typically, red flag laws allow people to report someone they know — whether it’s a friend, a family member, a co-worker or someone else — to the authorities, with concerns about them having a gun. Then the courts get involved. A judge hears the arguments and decides whether the person should be allowed to have firearms.
Many of the states that have passed such laws have actually passed several versions, to address different possible angles. A 2021 study by New York University found that 19 states have a combined 43 red flag laws on the books.
One state, Oklahoma, has gone the other direction and passed a law banning individual cities or counties from trying to enact red flag rules on the local level.
What’s the opposition to red flag laws?
Some critics worry that people would abuse the red flag reporting process to harass people they dislike, even if there’s no real reason to take the person’s gun away. Some states have addressed that concern by fining or even criminally charging people who file false reports.
Other critics contend that red flag laws violate the 2nd Amendment. But that is probably not accurate, legal expert Jeff Welty of the UNC School of Government wrote in a detailed 2019 post.
However, he noted, “the North Carolina Constitution in some ways protects the right to bear arms more broadly than the Second Amendment does, so even if red flag laws are compatible with the Second Amendment, there could be some question about their status under the state constitution.”
What’s the law in North Carolina?
North Carolina does not have a red flag law, which is also sometimes called an extreme risk protective order or ERPO.
However, there is a similar law that applies only to perpetrators of domestic violence.
That law — which was originally passed in 1995 — was passed to protect victims of abuse; a large percentage of murders in North Carolina are related to domestic violence. And even though felons always lose their gun rights, domestic violence rarely leads to a felony conviction. It often ends up as a misdemeanor, or a non-criminal finding like a 50(B) domestic violence protective order or DVPO.
And while the law doesn’t require judges to always take away the gun rights of domestic abusers, they often do. Those rules work in much the same way that red flags might work, although red flag laws would apply to anyone, not just people found to be responsible for domestic violence.
For instance, if a domestic abuser uses a gun in the act, or threatens to commit suicide, or injures or threatens a child, then courts are required to ban that person from owning guns, according to Giffords Law Center, which advocates for more restrictive gun laws.
If none of those factors come into play in a DVPO, then judges are not required to make the abuser hand in their guns or stop them from buying guns, but they still have that option if they see fit.
Unlike a more permanent loss of gun rights from a felony conviction, though, the loss of gun rights from a DVPO only lasts for as long as the order remains active. Red flag laws would likely work in a similarly temporary manner if approved in North Carolina.
Congress considers gun changes
North Carolina Republican Sen. Thom Tillis has been chosen to help write a bipartisan gun bill for the Senate that could include financial incentives for states to pass red flag laws, possibly modeled on what Republicans in Florida passed in the wake of the 2018 Parkland shooting, The News & Observer reported. It would not create a nationwide red flag law, Tillis said.
Democrats in the N.C. General Assembly have pushed for red flag laws at the state level for years, including in a bill they filed in the current legislative session and promoted again Thursday at a press conference with advocates.
The Republican-led legislature has resisted the idea in the past. But if Republicans in Washington warm up to the idea — particularly if it’s led by Tillis, who was the N.C. speaker of the House before going to Congress — then it’s possible the proposal may receive more attention in Raleigh, too.
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at https://campsite.bio/underthedome or wherever you get your podcasts.
This story was originally published June 10, 2022 at 10:23 AM.
