This article originally appeared on my Newsmax column.
Mass shootings like the one in Parkland, Florida, force Americans to reflect on just how broad their Second Amendment right should be.
Though overall instances of gun violence have declined in number, clearly the problem is not completely resolved. Responsible, law-abiding citizens should be able to own guns, but there are individuals out there who forfeit that right by committing felonies or making violent threats. The issue facing Congress is what they can do about these dangerous individuals, while still maintaining Second Amendment liberties.
Across the U.S., anyone who passes a federal background check can purchase firearms. These background checks look into things like criminal history, mental health history, immigration status, etc.
However, the information in federal databases is not always up-to-date or complete — states do not have a good track record of providing information. Additionally, in some states, only licensed gun dealers are required to run background checks. Private sellers and vendors at gun shows are not required to do so. Republicans made a big issue out of not letting anyone vote who couldn’t produce an ID — shouldn’t we apply the same standards to weapons that could harm dozens of people?
Nikolas Cruz, the Parkland shooter, obtained his AR-15 legally after passing a background check. Cruz was able to purchase a gun despite observations by his peers that he would be a likely candidate for a school shooter. Any mental health problems Cruz may have, however, did not surface in his background check.
This is because in many states, including Florida, mental illness is only available in the federal databases under limited circumstances. Mental illness shows up on a background check only if 1) a person has been involuntarily admitted to a mental hospital or 2) a court or government body officially declares a person mentally incompetent. This is also assuming that states actually submit this information to the federal government. In fact, some people estimate that we are not even placing half of these records in the database
Obviously, this is not a very good metric for keeping track of every state citizen that might be mentally ill. In Florida, it is even possible to be involuntarily detained for mental illness and still purchase a gun, if the detainment does not last for more than 72 hours.
Though mental health is not the reason behind most gun violence, is it certainly partly to blame in tragedies like Parkland, and lawmakers should work to find a better way to prevent the mentally ill from possessing firearms. The problem is that it is difficult to classify individuals with mental health issues as actually dangerous. The government would run the risk of over-categorization if it attempted to compile a more thorough registry. For example, if a person saw a therapist for minor depression and anxiety, would they be barred from firearm possession? If so, this law might apply to some of the nation’s military and police officers.
One possible solution is for all states to adopt so-called “red flag laws.” Red flag laws allow the temporary seizure of guns from individuals before they can be used for harm. Four states have adopted red flag laws, and 18 other states, including Florida, are considering similar legislation.
The system relies on third parties to report to the government if they believe individuals are a danger to themselves or others. The focus of these laws is to single out dangerous behavior, rather than mental illness in general. Dangerous behavior is categorized as including signs of mental illness, substance abuse, domestic violence, etc. If an individual is reported as exhibiting dangerous behavior, their firearm is temporarily seized, but may be returned to them after a court proceeding and most of the time the hearing must take place within 2-4 weeks.
The worry of staunch Second Amendment supporters is that under this system, firearms might be taken from individuals without just cause. However, the seizure is only temporary, and people have the opportunity to argue their case and dispute evidence that they exhibited dangerous behavior. These laws exist for citizens’ protection, not to destroy their rights. In fact, it is still up to the state to prove that someone is dangerous, so the burden of proof doesn’t shift to the accessed which is an essential part of protecting due process.
Following the horrific events in Parkland, there has been a promising surge of bipartisan support for new gun control legislation. There is the strong possibility of a bipartisan bill to ban bump stocks, a move which both President Trump and Jeff Sessions have said they support. Trump is also supportive of efforts to improve the federal background check system, expressing the desire that federal and state agencies be held accountable if they fail to upload records into the system.
Recent survey data from POLITICO/Morning Consult shows that most Americans are in favor of strengthening gun control laws related to background checks and preventing guns from getting in the hands of the mentally ill. In fact, 88 percent of Americans support universal background checks for gun purchasers. Most interestingly, 55 percent of gun owners back new restrictions, as well as 49 percent of Republican voters. Though recent surveys have shown even higher numbers than this!
History and data has taught us that broad based gun control doesn’t work and ends up wasting the limited resources that police have on harassing people who have never committed a crime. However, targeted gun control which harshly prosecutes felons for gun possession and the implementation of a red flag system could have prevented the last three mass shootings in Florida. The FBI was aware of the three last mass shooters long before they committed any acts of violence, but they didn’t have the tools to act pre-emptively. No one is arguing for putting anyone in jail for free speech, but it is important that there is a temporary process to take weapons from someone until it is clear they are no longer a threat to themselves or others. Making these changes could ensure that mass shootings will decline, but we must stop talking about what needs to be done and simply do it.
Special thanks to Katherine Pickle, a member of my staff, for her help in writing, researching, and editing this article. Katherine is the chief law clerk at the Reid Law Firm and a 2L student at Emory Law School.