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Weekly Column: We Must Be Careful About Red Flag Laws

Guest column submitted by U.S. Senator Mike Crapo

Congress recently passed and the President signed into law S. 2938, the Bipartisan Safer Communities Act.  Although this law contained some needed solutions to address mental illness, threat identification and school safety, I voted against this bill because it will abridge the rights of law-abiding citizens through the use of federal funds to help states establish gun ban/confiscation programs, also known as “red flag laws.”  

Congress should not incentivize states to establish red flag programs in violation of Americans’ Second Amendment rights.  As demonstrated in some states with red flag laws, states can use red flag laws to deny access to firearms without requiring adjudication in a court of law that a person is an imminent danger to self or others.  An individual does not need a criminal record or a history of mental illness to lose their firearms.  And, there is not a mandated requirement that a court must adjudicate the decision to deprive an individual of their constitutional rights. 

These types of problems have also surfaced at the federal level.  For example, the U.S. Department of Veterans Affairs (VA) follows a practice of reporting veterans to the National Instant Criminal Background System (NICS), thereby prohibiting the veteran from possessing a firearm with the threat of fines and imprisonment, if, in the opinion of the VA, the veteran needs a legal representative to assist them with their benefit payments.  These determinations are based on the agency’s process and not a court or other lawful authority determining the veteran is a danger.  I co-sponsored legislation to prohibit this practice at the VA to reinforce the constitutional rights of the veterans who defended them.  

During the Obama Administration, the Social Security Administration (SSA) also sought, via regulation, to declare Americans who need assistance managing their benefits as mentally defective and subject to having their Second Amendment rights revoked.  In 2015, I led a letter to the SSA outlining concerns with the proposed rule.  Entering millions of seniors into a system designed to prevent the sale of guns to bad actors is not the solution to stopping violence in society.  Fortunately, in 2017, Congress passed and President Trump signed a resolution that nullified the regulation.  I was an original co-sponsor of the Senate version of the resolution. 

The Idaho Legislature pushed back on federal overreach through red flag laws and other regulatory efforts by passing the Idaho Firearm and Firearm Accessories and Components Protection Act in 2021.  This law prevents all Idaho government entities from enforcing executive orders, federal laws, treaties, agency orders and rules of the U.S. government involving firearms, firearm components and accessories, or ammunition that conflict with the Idaho Constitution.  

As Ranking Member of the U.S. Senate Finance Committee, I have been working with Committee members on policies to improve our mental health system.  Our effort includes seeking meaningful solutions to address violence related to mental health concerns.  These policies, which expand access to essential care by supporting telehealth options and creating more sites of service, are the types of bipartisan, targeted solutions that address root causes of gun violence.  Several parts of our work were incorporated into S. 2938.  I will continue to work to advance these types of sensible solutions that address root causes of gun violence without abridging Second Amendment rights. 


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