Any chance of a so-called red flag law emerging from Tennessee this year was officially snuffed out this week. Its demise signals the policy will have problems expanding to more states.
Despite capturing nearly all of the attention in the run-up to the Tennessee special legislative session, Volunteer State lawmakers adjourned on Tuesday without so much as a debate on Republican Governor Bill Lee’s “temporary mental health order of protection” legislation.
That outcome was not a shock given things had been trending that way in the weeks leading up to the special session’s start date. Still, the fact that a Republican Governor—considered by many to be otherwise staunchly in favor of gun rights—went out on a political limb to call for a temporary gun confiscation bill, with all the potential for backlash that entails, was certainly noteworthy. That his spirited advocacy was not enough to get other Republicans in the ruby-red state on board is even more telling.
Red flag laws have increasingly come under fire from gun-rights advocates and some civil libertarians as they’ve grown in popularity in recent years. Critics charge that the laws infringe on the right to keep and bear arms without a criminal conviction or even a proper civil proceeding because most iterations currently allow a confiscation order to be issued by a judge without the accused party being able to defend themselves or even be present in court in some cases.
Keenly aware of this, Lee went to great lengths to distance his proposal from other temporary confiscation laws, even deliberately avoiding the “red flag” label altogether when promoting it. He also attempted to bolster his proposal with numerous due process protections not found in any other similar law on the books elsewhere in the hopes that might persuade skeptics to get on board. Instead, outside of a small handful of Republican lawmakers and Democrats, Lee’s proposal was widely rebuked by the state’s conservative majority. It was never even brought up for a vote during the special session it was initially meant to be the centerpiece for.
Its fate suggests that no amount of due process considerations or creative marketing can overcome the tainted reputation attached to anything resembling a red flag law in the minds of most gun-rights activists and Republican lawmakers. That inherently limits any hope proponents might have of the policy spreading anytime soon.
Though 21 states plus the District of Columbia have enacted some form of red flag law to date, just two are under trifecta Republican control. And the two red states that did choose to adopt some form of red flag law did so under much different circumstances than red states find themselves in now.
Indiana passed its law back in 2005, becoming just the second state in the country to do so. As an early adopter, it avoided today’s contemporary debate over the law as a hot-button divide between gun-rights and gun-control supporters. And it predated a time when gun politics had almost entirely polarized along party lines.
Florida is the only other red state with a red flag law on the books. And while it adopted one much more recently, in 2018, it did so in a far different political climate than the one in Tennessee. While the state was Republican-controlled in 2018, it was still widely considered a purple state at the time with a swinging electorate to consider. And the Republican control of the state legislature was far less absolute than it is now with its current supermajorities in both chambers. The 23-17 Republican majority in the Senate at the time was as slim as it had been since 1996, and the 73-47 split in the House was as narrow as it has been any time in the state since 1998. Those are clearly very different conditions than the current balance where, much like in Tennessee, Republicans have a stranglehold over the levers of state government and are focused on cranking out gun-rights bills rather than gun control.
Since 2018, the country has also seen an explosion in conservative-leaning state and local governments embracing the “Second Amendment Sanctuary” movement. More than 1,000 counties have now passed resolutions, often in response to red flag legislation. The outcome of the Tennessee special session shows that antipathy toward red flag bills has not receded.
Of the remaining 29 states without a red flag law on the books currently, 21 are under trifecta Republican control. Republicans control both chambers of the legislature in another six states. That leaves Pennsylvania and Maine as the only two states in which Democrats control two or more pieces of the state trifecta that don’t currently have a red flag law on the books, and neither are likely to adopt one in the immediate future.
It’s become abundantly clear that red flag laws, or anything closely resembling them, still aren’t politically palatable in Republican-leaning states. Since that constitutes the vast majority of states without one on the books, it would appear red flag laws have all but run out of room to grow for now.