National Review Online
Thursday, June 02, 2022
When the Senate returns from its break next week,
its members intend to discover if there are any gun-control measures on which
60 senators can agree. Bipartisan talks are underway. They usually amount to
nothing in this area — appropriately — but there is more buzz about their
seriousness this time, with much of it around so-called “red flag” laws. These
laws trigger the temporary confiscation of firearms when an individual is
deemed a threat to himself or others.
We have urged states to consider such laws. If carefully
crafted, they can provide law enforcement and families a tool to potentially
prevent a disturbed person from acquiring firearms to carry out a devastating
attack.
But the federal level is a different matter. First of
all, our constitutional system expressly separates the responsibilities of the
federal government and the responsibilities of the states, and, absent an
amendment that empowers it do so, the federal government lacks any authority to
remove legally owned firearms from individuals whom it suspects may be
dangerous at some point in the future. If one squints, one can find in the
Commerce Clause certain powers to regulate the transportation, importation, and
interstate sale of firearms. One cannot find the power to superintend their
possession. Under no circumstances should that power be claimed.
Legalities aside, it would be a mistake for the federal
government to try to create and administer a red-flag system itself. If such
laws are to work effectively, it will be because the government that
administers them inspires confidence and is close and accessible to the people
availing themselves of the laws. There is far too much distance between the
federal government and the citizenry for this to work at a national level.
There is a reason that Florida’s red-flag law — which was passed after the 2018
Parkland shooting — is run on a county-by-county basis, and administered by
local police, and that reason is that, in this matter, local is better. The FBI
is not set up to execute such a system, and the federal courts are not set up
to adjudicate it. And, even if they were, Americans would be right to oppose
elevating yet another question to the national level.
After the last few years, especially, it is not
irrational for the citizenry to worry about putting such a sensitive power in
the hands of people (i.e. Joe Biden) who are on record arguing that they
shouldn’t be able to own mainstream firearms in the first place. It is likewise
not irrational for the citizenry to mistrust the capacity of the FBI and the
federal bureaucracy to keep political bias out of the process. It was only two
weeks ago that this administration was laboring to wield a mass shooting in
Buffalo as a club against anyone who watches Tucker Carlson or frets about the
demographic impact of immigration. The last thing America needs is one more
fundamental right whose security varies by who wins the next presidential
election.
Reports suggest that the bipartisan talks are focusing
much more modestly on grants to the states for red-flag laws rather than a
federal red-flag law itself. There isn’t a need for any federal involvement in
this area, but if Congress is going to hand out funds for this purpose, it
should write clear guardrails that make sure the flow of funds can’t be abused
and that it only goes to state programs that have robust protections for due
process. Senators Marco Rubio and Rick Scott have had a proposal with bipartisan backing to incentivize the
adoption of state laws similar to Florida’s.
As we’ve said, there is no magic solution to mass shootings.
Congress can only make mistakes if it pretends otherwise.
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