Congress is due to enter a recess for a week, but that is not stopping senators from discussing gun policy reform. A bipartisan group of nine senators is holding discussions over the Memorial Day recess about red flag laws and expanding background checks.
Sens. Rick Scott (R-FL), Lindsey Graham (R-SC), Pat Toomey (R-PA), and Bill Cassidy (R-LA) attended the initial discussions that started on Thursday. As governor of Florida, Scott implemented red flag laws and raised the age to own a rifle to 21 after the shooting at Marjory Stoneman Douglas High School in Parkland.
“I sat down with Rick yesterday to ask him how he got that [law] passed and how impactful he thought it would be,” Sen. Chris Murphy (D-CT) said in an interview with Politico. “I think it ought to be done at the state level,” Scott responded. Murphy believes federal legislation on red flag laws could involve grants that assist states in implementing the policy.
Scott denied discussing “gun-related legislation” in his talks with Murphy. “Senator Scott is focused on how we can continue to make schools safe,” Scott’s spokesman said. Yet his presence at the bipartisan discussions held today raises an important question: Is there a compromise on red flag laws in the works?
In Florida, a petition for a risk protection order must be filed to start the process of removing guns from an individual’s possession. Once a petition is filed, the petitioner and respondent attend hearings to argue whether the order should be issued. “Such petition for a risk protection order does not require either party to be represented by an attorney,” according to Florida’s legal code. If a person cannot afford a lawyer, he or she is not appointed one.
Law enforcement is the only party allowed to request the removal of someone’s guns in Florida. Rhode Island and Vermont are other states that have this strict requirement. Family members can report the individual to law enforcement, but they cannot directly file the petition for a risk protection order.
In Caniglia v. Strom, the Supreme Court unanimously ruled that law enforcement cannot cite the “community caretaking” exception to the Fourth Amendment in order to take guns from someone’s home. The ruling, while not striking down red flag laws, does state that red flag laws may be challenged under the Fourth Amendment. In Florida, the standard for a risk protection order is “reasonable cause,” which may be interpreted as lesser than the Fourth Amendment’s “probable cause.”
Congress may be able to avoid directly impeding the Fourth Amendment if it passes grants for state red flag laws rather than a national policy. However, if Florida’s law is used as the model for conditioning funds, there will almost certainly be constitutional challenges that arise.
Even the ACLU is on the fence about red flag laws. In Rhode Island, the ACLU initially opposed the state’s proposal. Opposition to the legislation was dropped after it was greatly modified to include legal representation for respondents, tightened petition standards, penalties for false filings, and specific standards for evidence. The final stance of the ACLU was neutral, and outright support of the proposal never occurred.
The notion that we can halt mass shootings before they occur is a virtuous one, but the road to tyranny is paved with good intentions. Any proposal that treats the right to bear arms as a privilege and not a God-given right enshrined in the Constitution needs to be dead on arrival. The public should prepare for another national showdown over the Second Amendment if Florida’s red flag law influences the Senate discussions on school safety.
James Sweet is a summer 2022 Washington Examiner fellow.
