President Trump's Call for 'Red Flag' Laws Is a Hypocritical Distraction

by Thomas McGarity

August 19, 2019

In response to this month's mass shootings in El Paso, Texas, and Dayton, Ohio, President Donald Trump urged legislators to enact "red flag" laws to prevent future tragedies. Red flag laws allow police or family members to seek court orders (sometimes called "extreme risk protection orders") that temporarily remove firearms from individuals who present a danger to themselves or others. But do these laws and regulations distract from the larger point about gun violence and mass shootings in the United States?

Trump urged lawmakers to "make sure that those judged to pose a grave risk to public safety do not have access to firearms and that if they do those firearms can be taken through rapid due process." On first hearing, this sounds like a call for the government to protect the public from potentially dangerous individuals. But don't be deceived. The president doesn't really want even that modest degree of protection.

In December 2016, the Social Security Administration (SSA) issued an internal management regulation that directed its staff to submit records to the National Instant Criminal Background Check System (NICS) of Social Security recipients who were not allowed to possess guns because of severe mental illness. The NICS Improvement Amendments of 2007 prohibited individuals who had been deemed severely mentally ill by a court or other authority from purchasing guns, and it required their names to be added to the National Instant Background Check System. The SSA regulations simply implemented part of that law. It did not even empower the government to remove guns from such individuals. Who could argue with that?

The National Rifle Association (NRA), of course.

Despite the fact that many firearms advocates supported the SSA regulation, the NRA lobbied Congress to pass a joint resolution overturning it under the Congressional Review Act. That obscure statute empowers Congress to overturn major federal regulations by passing a joint resolution of disapproval that is then signed by the president. A special provision in the law simplifies enactment by excluding the resolution from the Senate's normal 60-vote threshold before it can be considered on the floor, meaning that a bare majority can prevail. And another provision prohibits the relevant agency from developing any regulations that are "substantially the same" until Congress passes legislation specifically authorizing that action.

The NRA got what it came for. In February 2017, just a few weeks after an election in which the gun group had spent more than $50 million to elect gun-friendly candidates, all Republican senators and four Democrats voted for the resolution, and President Trump obligingly signed it. So much for the conservative mantra that the solution to mass killings is to keep guns out of the hands of mentally ill people. Perhaps the fear of being called out for such hypocrisy was why Trump lacked the courage to hold the sort of signing ceremony that he's held for much less significant measures and why the White House even refused to release a photograph of the event.

All that said, there is an important question about the effectiveness and appropriateness of focusing gun laws and regulations on mentally ill people, who already face significant stigma and discrimination. As Vox and other outlets have reported in the weeks since the El Paso and Dayton shootings, most gun violence isn't carried out by people with diagnosed mental illnesses. Many shootings happen during the commission of other crimes and "in the heat of the moment." And many of the domestic terrorists who have carried out mass shootings, particularly in the past few years, have been driven by hatred and extremist ideologies – often of the sort that finds succor in the divisive and racist rhetoric of the current president. They've been able to carry out their deadly crimes due to ready and legal access to high-powered weapons of mass murder, capable of killing dozens in a matter of seconds.

Taken as a whole, this leads to the inescapable conclusion that talk about red flag laws and mental illness with regard to gun violence is a cynical and hypocritical effort to distract Americans from considering real solutions, in fear of offending the NRA. In response to the El Paso and Dayton mass shootings, President Trump could have called for more effective gun controls. A ban on the sale of assault weapons sounds like a no-brainer. Instead, he called for "strong" background checks (whatever that means) and a red flag law, and Mitch McConnell refused to call the U.S. Senate back from its August recess to debate even those proposals.

It remains to be seen how dedicated the president is to protecting Americans from gun violence. Will he actively push Congress to finally take some steps in the right direction, or is he just waiting for the anguished reactions to two more killing sprees to die down so that he and his allies in Congress can return to business as usual: doing nothing substantive to protect Americans from mass shootings and domestic terrorism?

Tagged as: gun violence
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Thomas O. McGarity holds the Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law at the University of Texas in Austin. He is a member of the board of directors of the Center for Progressive Reform, and a past president of the organization.

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