Senate Judiciary Committee Considers How to Balance Gun Rights With Mental Health Concerns

By Susan Jones | March 26, 2019 | 11:52am EDT
Sen. Lindsey Graham (R-S.C.) (Photo: Screen capture)

( - The Senate Judiciary Committee held a hearing Tuesday on red flag laws, or extreme risk protection orders, which allow guns to be confiscated from people who exhibit an intent to harm themselves or others, if a court agrees.

"We're trying to balance the right to own a gun under the Second Amendment with mental health issues that are far too prevalent in our society," Chairman Lindsey Graham (R-S.C.) said in his opening statement.

"And there are times, like in the Parkland case, where if the law enforcement community had these tools, they could intervene and they could do something about it.

"And my hope is that what we will do up here in Washington -- I think passing a federal law is probably beyond what the market will bear -- but create an incentive at the federal level for states who want to go down this road, making sure that the laws are meaningful and that there is due process for people."

Fourteen states (Connecticut, Indiana, California, Washington, Oregon, Florida, Vermont, Maryland, Delaware, Rhode Island, New Jersey, Massachusetts, Illinois, and New York) and the District of Columbia have adopted red-flag laws, Graham noted, which allow "law enforcement and sometimes family members to go to a court and say this person needs some help, and we need to stop violence before it occurs."

Graham said one goal of Tuesday's hearing is to "define the problem."

"There are a lot of people may be worried, is the government going to come take your guns, and the answer is no. Nobody's going to come take a gun from you. But there will be a process for law enforcement and family members to petition a court to say that somebody in your neighborhood or somebody down the street or across town is about to blow."

Graham said he's a Second Amendment supporter and owns firearms. "But at the same time, every right has limits. And what I'm trying to do with this hearing today is start a discussion about what's working at the state level."

He noted that in Connecticut, following adoption of its red flag law, the suicide rate has come down.

And in Parkland, Florida, Graham said, the perpetrator of the Parkland shooting "really did everything but take an ad out in the paper" that he was going to shoot somebody. He ended up killing 17 people in a high school.

"So Florida created a red flag law to give the law enforcement community a chance next time to intervene before it's too late," Graham said.

Sen. Chuck Grassley (R-Iowa) expressed concern about the constitutionality of red-flag laws that don't have rigorous due process rights.

The National Rifle Association shares that concern, saying on its website that "no one should be deprived of a fundamental right without due process of law."

It says any red-flag law adopted by the states (it opposes a federal law) should be structured in a way to fully protect the Second Amendment rights of law-abiding citizens while preventing truly dangerous individuals from accessing firearms.

The NRA said any state law it could support must include the following:

-- The process should include criminal penalties for those who bring false or frivolous charges.

-- An order should only be granted when a judge makes the determination, by clear and convincing evidence, that the person poses a significant risk of danger to themselves or others.

-- The process should require the judge to make a determination of whether the person meets the state standard for involuntary commitment. Where the standard for involuntary commitment is met, this should be the course of action taken.

-- If an ERPO (extreme risk protection order) is granted, the person should receive community-based mental health treatment as a condition of the ERPO.

-- Any ex parte proceeding (a proceeding where one party is not present) should include admitting the individual for treatment.

--- A person’s Second Amendment rights should be temporarily deprived only after a hearing before a judge, in which the person has notice of the hearing and is given an opportunity to offer evidence on his or her behalf.

-- There should be a mechanism in place for the return of firearms upon termination of an ERPO, when a person is ordered to relinquish their firearms as a condition of the order.

-- The ERPO process should allow an individual to challenge or terminate the order, with full due process protections in place.

-- The process should allow firearms to be retained by law-abiding third parties, local law enforcement, or a federally licensed firearms dealer when an individual is ordered to relinquish such firearms as a condition of the ERPO. The individual must also have the ability to sell his or her firearms in a reasonable time without violating the order.

The witnesses testifying on Tuesday were a policy adviser with the National Alliance on Mental Illness; the legislative chair from the California chapter of the Brady gun control group; the sheriff of Palm Beach County; an attorney from the King County, Washington, Prosecuting Attorney's Office; and the research director of the Independence Institute, a libertarian think tank in Denver, Colorado.

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