One of the saddest realities of modern American life is that we have now experienced a sufficient number of mass shootings that we can study them over time and discern the common patterns. While each individual shooting may be shocking or puzzling, in the aggregate we know a lot about mass shootings and mass shooters. That knowledge should inform our policy response, and it should directly and immediately inform how our political system responds to the present crisis.
Here’s the bottom-line reality you need to know, from a National Institute of Justice–funded study of 50 dreadful years of mass killings:
Persons who committed public mass shootings in the U.S. over the last half century were commonly troubled by personal trauma before their shooting incidents, nearly always in a state of crisis at the time, and, in most cases, engaged in leaking their plans before opening fire. Most were insiders of a targeted institution, such as an employee or student. Except for young school shooters who stole the guns from family members, most used legally obtained handguns in those shootings. (Emphasis added.)
This “leakage” is particularly obvious in school-shooting cases. In 2018, Arizona Governor Doug Ducey’s team studied each of the deadliest school shootings since Columbine, and found that the killers had engaged in deeply troubling behavior before every shooting. Many of the killers had radiated danger and menace.
And so had the Uvalde shooter (I’ve made it a policy not to use mass shooters’ names). He reportedly cut his own face “just for fun.” He drove around and shot at people with a BB gun. A neighbor said he’d seen police at his home. And then, after these incidents, the shooter posted that he’d purchased two assault weapons.
The Buffalo mass shooter also radiated danger. In June 2021, police briefly took him into custody after he “made a threat about a shooting.” Police ordered a psychiatric evaluation, and he was released after being hospitalized for a day and a half.
This constant waving of red flags is why I’ve been on a soapbox for years about red-flag laws. It’s why I repeated my call for red-flag laws in the hours after the Uvalde shooting. It’s why Congress should act now to pass federal red-flag legislation.
Red-flag laws include laws of various names and types—they’re sometimes referred to as “gun-violence restraining orders” or “extreme-risk protection orders” or a “severe-threat order of protection”—that allow defined sets of individuals (usually family members, school officials, and police) to seek an order from a court requiring the police to temporarily seize guns from a person who exhibits dangerous or threatening behavior.
I own guns. I’m an advocate of gun rights. The very first essay I ever wrote for The Atlantic was an explanation of why I carry a gun. But I still support red-flag laws. Why?
First, they’re driven by evidence and tailored to address a precise crisis. In the immediate aftermath of mass shootings, the debate typically turns to two forms of gun control—universal background checks and assault-weapons bans—that would do little to address the challenge of spree killings. The NIJ report referenced above notes that shooters tend to obtain their weapons legally and use handguns when they commit mass murder.
Moreover, given the prevalence of guns, background checks and weapon bans are extraordinarily easy to circumvent, especially for motivated killers who plan their crimes in advance.
A red-flag law, by contrast, would apply in most mass shooting situations, would permit police to seize weapons, and provide a breathing space that could permit rigorous mental evaluation.
Second, they don’t require citizens to trust the police. A terrible, defining feature of many mass shootings is the sheer number of times that mass killers interact with the police before they commit their crimes. Police received calls from the Parkland, Florida, school shooter’s house dozens of times, and a neighbor even warned law enforcement of a social-media post in which the shooter said he planned to “shoot up the school.” Yet he was still able to legally purchase the weapon he used to murder 14 students and three members of the school’s staff.
A well-drafted red-flag law would allow citizens to approach a court entirely on their own and seek a court order that would require police to intervene. Family members and school officials wouldn’t be helpless if law enforcement initially refused to act. They’d have their own recourse, and if they persuade the court, then the police have to seize the potential shooter’s guns.
It’s not foolproof. Police negligence is still possible. But a red-flag law gives citizens one more tool that doesn’t require convincing the police to intervene.
Third, they fit neatly within American law and tradition. Opponents of red-flag laws tend to focus their objections on due process—in particular the common (and necessary) provision that allows for ex parte relief, an emergency seizure order issued before the gun owner has an opportunity to object. “How,” they ask, “can a person be deprived of their constitutional right to self-defense before they receive a hearing?”
But we’ve been doing this for years in different contexts. The best comparison is to domestic-violence restraining orders, which can deprive a father, for example, of his fundamental right of access to his own family—even before a hearing—with proof of sufficient need. In Tennessee, for example, courts can issue ex parte restraining orders for “good cause shown.”
Indeed, the comparison to domestic-violence restraining orders illustrates exactly how easily our nation can incorporate gun-violence restraining orders into our national consciousness. Americans generally understand how restraining orders work, and giving them one more tool in their toolbox can save lives.
And it can save lives without violating Americans’ rights to due process, so long as the law allows for prompt hearings after the court issues its order. Pending federal red-flag legislation requires a hearing within 72 hours. That’s due process.
Fourth, they have bipartisan support. As The Washington Post’s Aaron Blake reports, a number of Republicans have indicated that they’re open to red-flag-style laws:
GOP senators like Lindsey O. Graham (S.C.), Marco Rubio (Fla.) and Rick Scott (Fla.), in particular, have leaned in on the idea, with the last two senators coming from the state where a gunman killed 17 at Marjory Stoneman Douglas High School in Parkland in 2018. Florida is one of only two red states with such a law, which passed shortly after Parkland, as it did in other states. President Donald Trump floated the idea after a series of such massacres in 2019. Arizona Gov. Doug Ducey (R) included a red-flag proposal in a 2018 school-safety plan. Texas Gov. Greg Abbott (R) also said in a 2018 proposal that a “properly designed” red-flag law could prevent such tragedies.
Even the National Rifle Association, at one point, seemed to suggest that it might give a little on this issue—even as it has staunchly opposed virtually any new gun legislation, deeming it a supposed slippery slope.
Mitt Romney also told The New York Times that he believes red-flag laws are “helpful.”
In fact, Senators Rubio and Scott co-sponsored red-flag legislation with the Democrat Jack Reed of Rhode Island and the independent Angus King of Maine just last year. Their proposal would create an Extreme Risk Protection Order Grant Program at the Department of Justice, provide powerful financial incentives for states to enact red-flag laws, and offer funding for implementation.
That latter element is key. If the public and police don’t know that red-flag laws exist, they won’t know to use them to protect themselves from dangerous potential killers. One of the tragic elements of the Buffalo shooting is that New York has a red-flag law, but neither police nor the shooter’s family chose to deploy it to take his weapons. Effective implementation and education take money, and the Rubio proposal would provide the funds that states need.
I don’t pretend to believe that red-flag laws—or any gun-control measure—will end the scourge of mass shootings. I do believe that they can and will save lives without violating the Second Amendment. Already 19 states and the District of Columbia have passed some form of red-flag law. The overwhelming majority are blue states. Red states should follow suit. Federal legislation is pending, and although it’s not perfect (by constitutional necessity it grants jurisdiction only to federal courts, and there are far fewer federal courts than state courts in the United States), it can provide additional protection for families and schools.
In moments of crisis and despair, I’m suspicious of calls to “do something.” Profound emotion can drive dreadful legislation. But in this case we can “do something” that makes sense. The right to keep and bear arms carries with it grave responsibilities. If a person demonstrates by word and deed that they are a risk to themselves or others, then they have failed in their responsibilities and should lose access to their Second Amendment rights so long as the danger shall last.