Newsletter: ‘Red Flag’ Laws Run Up Against Political Reality

This week, Tennessee showed us where the limits of support for so-called red flag laws likely lie. The Republican-controlled legislature ended its special session without even considering the modified red flag proposal backed by the state’s Republican governor.

I have a piece explaining what lawmakers did instead and why pretty much nobody came out happier. Meanwhile, Contributing Writer Jake Fogleman does a deep dive into why the failure of the governor’s initial proposal means we aren’t likely to see many more in the near future.

President Biden announced a new unilateral effort to tighten the nation’s gun restrictions. This time, he’s targeting used gun sales and attempting to expand who is required to get a federal dealer license. Our piece on the plan gives a ton of detail on what’s in the 108-page document.

The courts were busy too. One issued a nationwide injunction against the under-21 handgun sales ban (though, it also stayed its decision pending appeal). Another court upheld the prohibition on drug users possessing guns. A third denied Colorado a stay for a ruling against its ban on all gun sales to 18-to-20-year-olds.

We also got a new poll that shows Americans are both less supportive of enacting stricter gun laws than they were a year ago AND less enthused about supporting gun rights. So, something for everybody to love (or hate).

Jake also does a member-exclusive piece on whether the Republican presidential primary candidates’ silence on gun policy at the first debate was a mistake given what voters say they want.

Plus, law professor Dru Stevenson joins the podcast to explain why he wants SCOTUS to undo its gun precedents in new Second Amendment case.

An AR-15 on sale at Virginia gun show in July 2023
An AR-15 on sale at Virginia gun show in July 2023 / Stephen Gutowski

Tennessee Special Session Ends Without ‘Red Flag’ Gun Deal
By Stephen Gutowski

Tennessee will not implement the temporary gun confiscation proposal for individuals a judge finds are a threat that Republican Governor Bill Lee backed in the wake of the Covenant School shooting in Nashville.

The special session Lee called to address the mass shooting that saw a lone shooter murder three children and three adults murdered adjourned on Tuesday. The Republican-controlled legislature passed a package aimed at stopping future attacks, especially on schools. But Lee’s “Order of Protection” plan, a proposal similar to so-called Red Flag laws, didn’t make the cut.

Instead, the deal focused on more modest reforms. It provided $16 million in grants for mental health and addiction services, made minor changes to how the state reports information to the background check system, authorized $1.1 million for a new gun safety advertising campaign, and ordered the Tennessee Bureau of Investigation to produce a report on human trafficking.

Click here to continue reading.

Gun-control advocates protest outside the 2023 NRA Annual Meeting
Gun-control advocates protest outside the 2023 NRA Annual Meeting / Stephen Gutowski

Analysis: ‘Red Flag’ Laws Hit a Political Ceiling [Member Exclusive]
By Jake Fogleman

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.

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Customers browse guns at the Nation's Gun Show in July 2023
Customers browse guns at the Nation’s Gun Show in July 2023 / Stephen Gutowski

Biden Administration Proposes Plan to Expand Who Needs a License to Sell Used Guns
By Stephen Gutowski

President Joe Biden has announced a new proposal to expand the scope of federal gun dealing regulations to cover more people who sell used guns.

On Thursday, the Department of Justice submitted a new plan for determining who must obtain a federal firearms license to legally sell guns on the secondary market. The proposed rule would set limits on how frequently an unlicensed seller could offer up guns to customers, how often they can sell the same kind of gun, and what kind of condition the firearm has to be in before the seller would be required to get a Federal Firearms License (FFL). Anybody who violates the proposed regulations and sells a gun without a license could face up to $250,000 in fines and five years in federal prison or both.

Click here to read the whole story.

A Desert Eagle painted with an American flag on display at the 2023 NRA Annual Meeting
A Desert Eagle painted with an American flag on display at the 2023 NRA Annual Meeting / Stephen Gutowski

Judge Issues Nationwide Injunction Against Under-21 Handgun Sales Ban
By Stephen Gutowski

The federal law prohibiting handgun sales to adults under 21 years old violates the Second Amendment and should be blocked across the entire country, a federal judge ruled Wednesday.

Senior Judge Robert Payne of the United States District Court for the Eastern District of Virginia ruled the sales ban unconstitutional in May. He then asked the plaintiffs and government to agree to a path forward in issuing an injunction. Because the parties couldn’t agree, he sided with the plaintiffs on Wednesday and issued a nationwide injunction against the law.

“[T]he Court’s ruling does, and must, apply to protect the Second Amendment rights of all citizens between the ages of 18 to 21 who are otherwise eligible to buy a handgun,” Judge Payne, a George H.W. Bush appointee, wrote in Fraser v. ATF.

Click here to read more.

Pistols on display at the 2023 NRA Annual Meeting
Pistols on display at the 2023 NRA Annual Meeting / Stephen Gutowski

Federal Judge Upholds Gun Ban for Drug Use
By Stephen Gutowski

The law barring drug users from owning guns is constitutional, according to a new federal court ruling.

Federal District Judge C.J. Williams found an Iowa man’s challenge of the federal prohibition on its face failed. He ruled the ban doesn’t conflict with the Second Amendment and that the charge against the man for owning guns while using marijuana could stand. Although the law implicates the defendant’s gun rights, Judge Williams decided it was in line with the American tradition of gun regulations as required by the test handed down by the Supreme Court in 2022’s New York State Rifle and Pistol Association v. Bruen.

“The Court finds that Section 922(g)(3) does not violate the Second Amendment on its face and therefore denies defendant’s motion to dismiss,” Judge Williams, a Donald Trump appointee, wrote last Monday in United States v. Grubb. “In arriving at this conclusion, the Court first finds that Section 922(g)(3) implicates conduct protected by the Second Amendment. Second, the Court concludes that Section 922(g)(3) is consistent with this Nation’s traditional regulation of possession of firearms by criminals.”

Click here to read the rest.

Colorado state Capitol. Gold dome against a deep blue sky.
The Colorado Capitol Building / Photo by Paul Moody on Unsplash

Federal Court Won’t Let Colorado Enforce Under-21 Gun Ban During Appeal
By Jake Fogleman

A federal court will not put a hold on a lower court’s ruling against Colorado’s under-21 gun ban while the appeals process plays out.

On Tuesday, a panel of judges on the Tenth Circuit Court of Appeals denied an emergency request filed by Colorado Governor Jared Polis (D.) to stay the ruling blocking the state’s new law banning all gun sales to adults under the age of 21. The panel determined Colorado officials failed to demonstrate that they were “likely to succeed on the merits” of defending the ban’s constitutionality, underling the uphill battle faced by the state.

“To receive a stay pending appeal, a movant ‘must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest,’” Circuit Judges Carolyn McHugh and Nancy Moritz, both Obama appointees, wrote in an unsigned opinion for RMGO v. Polis. “Upon consideration, the Governor has failed to show his entitlement to a stay under these factors. Accordingly, we deny his emergency motion for a stay pending appeal.”

Click here to read the full piece.

Customers examine handguns on sale at a Virginia gun show in July 2023
Customers examine handguns on sale at a Virginia gun show in July 2023 / Stephen Gutowski

Poll: Support for Stricter Gun Laws Down, But So is Support for Gun Rights
By Jake Fogleman

Americans have simultaneously soured on the need for tighter gun laws and the importance of protecting gun rights over the last year.

A new Associated Press-NORC Center for Public Affairs Research poll released Friday found that 64 percent of Americans think the country’s gun laws should be made much or somewhat stricter. That’s down seven points from just a year prior, driven primarily by a 17-point drop in support among Republicans and an 11-point one among independents. Democrats remained firmly in favor of stricter gun laws, with 92 percent of respondents saying so.

At the same time, the poll found that just 48 percent of adults now say protecting the right to own a gun is important to them. That’s down six percentage points in the last year.

It also found a ten-percentage point drop in the number of Americans who say ensuring people can own guns for personal protection is important to them.

Click here to read the rest.

Podcast: Law Professor Who Wants Heller Overturned Explains His View of New SCOTUS Gun Case
By Stephen Gutowski

This week, we have Professor Dru Stevenson of the South Texas College of Law on the show to give his analysis of the Supreme Court’s latest Second Amendment case.

A few weeks back, we had pro-gun author and lawyer Mark Smith on to give his view of United States v. Rahimi. But I want to make sure we offer you all a wide variety of perspectives on where the case is headed. Stevenson certainly comes from a very different point of view, and he has an intimate knowledge of the case.

Plus, Contributing Writer Jake Fogleman and I talk about the lack of gun policy mentions during the first Republican primary debate.

You can listen to the show on your favorite podcasting app or by clicking here. Video of the episode is available on our YouTube channel.

Handguns on sale at the Nation's Gun Show in Chantilly, Virginia during July 2023
Handguns on sale at the Nation’s Gun Show in Chantilly, Virginia during July 2023 / Stephen Gutowski

Analysis: What to Make of GOP Presidential Candidates’ Silence on Guns [Member Exclusive]
By Jake Fogleman

Amidst a wide-ranging and, at times, quarrelsome debate between the Republican presidential hopefuls on Wednesday, the eight candidates on the stage broached several topics important to Republican primary voters, from abortion to immigration. However, gun policy and the Second Amendment were notably absent.

The omission of a central tenet of Republican politics is curious for a number of reasons, not least of which is that the candidates were directly asked about the topic in the regular course of the debate.

“This weekend here in Milwaukee, reports say there were 30 shootings, and a number of them including kids. Add that to the big increase in school shootings around the country,” Fox News host Bret Baier said while queuing up the topic for former New Jersey Governor Chris Christie to respond. “Democrats blame this crisis on easy access to guns. They also blame Republicans for blocking gun control legislation. What would President Christie do?”

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Outside The Reload

To Address Shootings, Do the Work | The Dispatch | By Kevin D. Williamson

Four Eighth Circuit Judges Argue That Felons Don’t Categorically Lose Second Amendment Rights | The Volokh Conspiracy | By Eugene Volokh

D.C. to pay $5.1 million settlement after judge finds Second Amendment violations | The Washington Post | By Meagan Flynn

Prosecution in Apple’s iPads-for-Concealed-Firearms-Licenses Bribery Case Goes Forward | The Volokh Conspiracy | By Eugene Volokh

Biden plans to make gun control a central focus of reelection campaign | Washington Examiner | By Christian Datoc

Newsom’s gun control Constitutional amendment passes legislative committee | The Center Square | By Kenneth Schrupp

That’s it for this week in guns.

If you want to hear expert analysis of these stories and more, make sure you grab a Reload membership to get our exclusive analysis newsletter every Sunday!

I’ll see you all next week.

Stephen Gutowski
The Reload

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