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Can Congress Pass a Law Disarming People in Crisis?

The Republican-controlled Senate on Tuesday held a hearing about extreme risk protection orders, which are supposed to prevent pre-planned mass violence and firearm suicides.
Wendy Behrend, a school crossing guard who was on duty when a shooter opened fire in Marjory Stoneman Douglas High School in Parkland, Florida, pays her respects at a memorial one year after the shooting.

Wendy Behrend, a school crossing guard who was on duty when a shooter opened fire in Marjory Stoneman Douglas High School in Parkland, Florida, pays her respects at a memorial one year after the shooting. At Tuesday's hearing, Senator Lindsey Graham suggested that an extreme risk protection order might have prevented the Parkland shooting.

In a departure from their party's usual stance, many Republicans sounded open and enthused about a gun-control law at a hearing on Tuesday in the Senate. The powerful Senate Committee on the Judiciary discussed extreme risk protection order laws, sometimes known as "red flag" laws, which allow law enforcement, and sometimes family members, to petition to have an individual's guns temporarily removed if they think the person is having a crisis and is in danger of hurting themselves or others.

"I'm a big fan of the Second Amendment. I own firearms and I try to be responsible in my ownership, but at the same time, every right has limits," Senator Lindsey Graham (R-South Carolina), chair of the Committee on the Judiciary, said during his opening statement. He said he thought an extreme risk protection order, executed against the man who shot and killed 17 students and teachers at Marjory Stoneman Douglas High School in Parkland, Florida, last year, would have prevented those deaths: "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." The Parkland shooter had a documented history of threatening violence, and the Federal Bureau of Investigation had twice received tips about him.

Some of the stronger evidence for extreme risk protection order laws, however, actually comes from studies of their effects on suicide rates. One recent study found that Indiana's law cut firearm suicides by 8 percent over 10 years and reduced Indiana's suicide rate overall, while Connecticut's law reduced firearm suicides by 14 percent, once the state began implementing it widely. In Connecticut, however, other types of suicides increased. Suicide is the most common reason for firearm-related deaths in America, followed by homicide.

One witness at the hearing, an attorney who's responsible for advising family members and law enforcement seeking extreme risk protection orders, said that her office once had a woman apply for a protection order against her boyfriend, whom she worried was suicidal. The couple returned for their hearing—where a judge would determine whether there was reason to block the boyfriend from buying a gun—holding hands. "The boyfriend, or respondent, had no objection to the extreme risk protection order," Kimberly Wyatt of King County, Washington, said, "and in fact expressed gratitude that somebody cared enough to make sure that he did not have access to a gun while he was in a crisis."

Fourteen states and the District of Columbia have extreme risk protection order laws, according to the Giffords Law Center, which tracks gun policy. Lawmakers are considering giving money to other states to implement them; Senator Dianne Feinstein (D-California), the Committee on the Judiciary's ranking member, introduced a bill in February that she said would create incentives for states. Because extreme risk protection order laws are newer and rarer, there isn't as much evidence for their effectiveness against violence as for background checks and certain combinations of gun laws, but they have the advantage of surprisingly bipartisan support in Washington.

Consider that, late last month, the Democrat-controlled House of Representatives passed a universal background check bill, 240 to 190, after an emotional hearing attended by survivors of mass shootings, family members of victims of gun violence, and student activists. Background checks are widely supported by voters, but less so by congresspeople. The Republican-controlled Senate doesn't seem very interested in taking that bill up. Yet even the Trump administration supports extreme risk protection orders, as Graham, a Trump ally, noted.

Still, not everyone is totally on board. At Tuesday's hearing, a few senators—including Chuck Grassley of Iowa and Ted Cruz of Florida—brought up worries about extreme risk protection laws violating gun owners' Second Amendment rights. They questioned one witness, gun rights advocate Dave Kopel, about what he wanted to see in extreme risk protection order laws. Kopel, who said he supported the idea of such laws, called for states to always provide notice and to require "clear and convincing" evidence before taking away someone's guns. Many states, however, have lower evidence standards and no notice requirements for shorter protection orders, usually lasting two to three weeks. The reasoning for the lower standard is that's what's feasible in an emergency. Kopel worried that someone could file for an extreme risk protection order against an innocent citizen with the intent of disarming and harming them. He called for states to ensure there are legal remedies for wrongly filed orders.

Graham admitted there was likely little political appetite for a nationwide extreme risk protection order policy. "I think passing a federal law is probably beyond what the market will bear," he said. That's why senators are focusing on incentives for states—a carrot, for when even the mildest of sticks is too much to take, politically.