Barrasso said Thursday that “there is no role of the federal government for red-flag laws,” ruling out even a federal program that would merely encourage rather than mandate them. “Wyoming is never going to pass one, and it is a state’s decision,” he said.
Speaking on the House floor Thursday, moments before lawmakers there passed a red-flag bill, Jordan questioned “why Republican senators are pushing this” and “trying to bribe states to implement this.” He said, “We know what this thing is going to look like and how it’s going to violate due process. I hope they will come to their senses and stand up for the law-abiding American citizens and their fundamental liberties and vote this thing down.”
A sustained conservative backlash threatens to upend a cornerstone of the Senate negotiations, which have been underway for roughly two weeks but have yet to produce a deal. Sens. Richard Blumenthal (D-Conn.) and Lindsey O. Graham (R-S.C.) have led talks over the red-flag measure, which would likely involve establishing federal grants and standards to encourage states to set up their own laws.
Nineteen states and the District of Columbia have laws in place allowing authorities, and sometimes private individuals, to seek red-flag orders, which are also known as extreme risk protection orders. While the laws differ in their details, they generally allow petitioners to ask a judge to issue a temporary order allowing authorities to seize the firearms of individuals or prevent them from purchasing new ones if they are found to constitute a threat to themselves or others.
Gun rights groups have consistently opposed the laws at the federal and state levels, calling them a backdoor effort at gun confiscation that does not afford due process and could be easily abused. The National Rifle Association, for instance, said this month that laws already proposed in Congress “trample on individual rights.”
The red-flag laws enjoy broad public support, according to recent surveys. An NPR/PBS NewsHour/Marist Poll taken after the May 24 shooting inside a Uvalde, Tex., elementary school found that 73 percent of Americans back red-flag laws, including 60 percent of Republicans and 61 percent of gun owners.
The House on Thursday voted 224 to 202 to pass a red-flag bill, with five Republicans voting in favor and one Democrat opposed. Ahead of the vote, Republican leaders urged their members to oppose the bill, calling it “poorly crafted legislation focused on firearm confiscation and undermining the constitutional rights of law-abiding citizens.”
The bill combined a measure incentivizing states to create their own laws with a more divisive bill that would allow family members or law enforcement officials to seek red-flag orders in federal court. Under that bill, a judge could immediately issue a 14-day restriction if he or she finds the person in question “poses a risk of imminent personal injury to self or another individual.” A longer-term order would necessitate a hearing with the subject of the order.
State laws have differing due-process standards, and the Senate negotiators have been seeking to work out those details to the satisfaction of a critical mass of Republicans. Rep. Salud Carbajal (D-Calif.), who sponsored the House measure incentivizing states to act, said similar legislation would “provide the foundation” for a Senate deal. “They are considering a few other things that are a little bit more challenging to get consensus on, but the red-flag bill is one that they seem to have more consensus,” he said.
But conservatives appear intent on undermining that consensus. Sen. Steve Daines (R-Mont.) said Thursday that states are free to pursue red-flag laws if they wish, but “this should not be something Congress needs to meddle in.”
Daines, who is seeking to chair the Senate Republican campaign committee for the 2024 election cycle, added, “Many of our states are swimming in money right now after we shoveled $7 trillion of covid money out the door, so money is not the issue. The states can do this if they think it’s the best thing they should be doing.”
Other conservatives who voiced opposition included Sen. Bill Hagerty (R-Tenn.), who noted a red-flag law in New York did not prevent the May 14 mass shooting in a Buffalo supermarket that left 10 dead, as well as Sen. Roger Marshall (R-Kan.), who called any red-flag provision a “poison pill” for any Senate deal. “I don’t see how a red-flag law passes up here,” he said. “I think it’s an infringement on the Second Amendment, and just like I’m standing up and fighting to protect our freedoms of speech and our freedoms of religion, I’m going to stand up and protect our Second Amendment.”
The top negotiators, Murphy and Cornyn, meanwhile, signaled that they considered the red-flag component of their negotiations very much alive. “I think we’ve got a diversity of opinions in the Republican caucus, but my sense is there is still a lot of support for state red-flag bills and federal support for the proper and constitutional implementation of those of those laws,” Murphy said Thursday. Cornyn separately added, “There’ll be something on that, but not a national red-flag law.”
Murphy declined to say whether a bipartisan deal without a red-flag element would be substantial enough to be worth passing. Negotiators are also discussing expanding federal background checks for gun buyers to incorporate juvenile records, providing billions of dollars in new mental health funding and additional measures to beef up school security.
Sen. Joe Manchin III (D-W.Va), another member of the negotiating group, said it was “a no-brainer to me” to include a red-flag provision. “I feel very strongly that it would be great if we could to address that, and it has to be addressed somewhere,” he said.
Other Republicans involved in the negotiations gave an upbeat assessment as well, including Sen. Bill Cassidy (R-La.), who said he supported federal support to states “if that preserves due process and if we made sure the rights of individuals are respected,” and Sen. Thom Tillis (R-N.C.), who cited the Florida red-flag law backed by Republicans there as a model. “It’s not mandatory. It’s optional,” he said. “Anybody who says that there’s a significant opposition to what we’re talking about right now, I just don’t see it in my discussions.”
With negotiators hoping to pick up support from not just the minimum of 10 Republican senators, but potentially 20 or 30, the fate of the provision may lie with those such as Sen. Joni Ernst (R-Iowa), another member of Republican leadership who said she was awaiting more detail and that it was “going to come down to definitions” because “everybody has a different thing in mind.” She said, “Right now, the discussions are so broad, we haven’t really narrowed down onto anything. But I think the positive thing, the takeaway from all of this, is that people have a pretty open mind.”
Paul Kane contributed to this report.