Senate negotiators unveiled a bipartisan gun control bill yesterday, hours before it survived a preliminary vote with enough support to overcome a filibuster. Sixty-four senators voted to advance the Bipartisan Safer Communities Act, which expands background-check requirements for gun buyers younger than 21, widens the categories of people who are not allowed to buy firearms, and provides federal funding for states with "red flag" laws.
The bill, which is the product of negotiations between Democrats and Republicans who want to be seen as doing something to prevent mass shootings and other kinds of gun violence, purports to achieve that goal without sacrificing Second Amendment rights. But the bill's details raise serious questions about its effectiveness and fairness. It pays lip service to civil liberties while canceling the gun rights of adults based on juvenile records, and it subsidizes state laws that suspend those rights without due process.
The bill requires that background checks for 18-to-20-year-olds who buy guns from federally licensed dealers include juvenile criminal and psychiatric records. If the National Instant Criminal Background Check System notifies a dealer within three business days that "cause exists to further investigate a possibly disqualifying juvenile record," the dealer is required to delay the sale up to 10 business days after the initial query. At that point, the sale can be completed unless a disqualifying record has been identified.
The main rationale for this new requirement is that it could be an obstacle for young mass murderers with disqualifying juvenile records. The perpetrators of the May 14 massacre in Buffalo, New York, and the May 24 attack in Uvalde, Texas, were both 18-year-olds who legally bought firearms from licensed dealers after passing background checks. But it does not look like those sales would have been blocked even if the background checks had included juvenile records.
Erie County District Attorney John Flynn said the 18-year-old charged with murdering 10 people at a Buffalo supermarket had no prior criminal record. Last year, when state police investigated him because of a comment about murder that he passed off as a joke, a psychiatric evaluation concluded that he did not meet the criteria for involuntary treatment. The Associated Press reports that the Uvalde shooter, who was killed by police after he murdered 19 elementary-school students and two teachers, "had no criminal record" and "no history of mental illness treatment."
Nor would the new requirement have made a difference in other notorious mass shootings where the perpetrator was younger than 21. The 17-year-old charged with murdering 10 people at a Santa Fe, Texas, high school in 2018 used his father's guns, so there was no background check for him to fail. The 20-year-old who killed 20 children and six adults at a Newtown, Connecticut, elementary school in 2012 obtained the rifle he used from his mother. The perpetrators of the 1999 massacre at Columbine High School in Colorado obtained firearms through older intermediaries.
The 19-year-old who killed 17 people at a Parkland, Florida, high school in 2018 had a history of disturbing behavior, and he had received mental health treatment. But a 2013 psychiatric evaluation under Florida's Baker Act concluded that he did not meet the criteria for commitment. The Associated Press reported that he "did not have a criminal record before the shooting."
Notwithstanding these examples, there may be cases where checking juvenile records would block gun sales to would-be mass murderers younger than 21. But that policy is inconsistent with the general principle that people who commit crimes as minors should not be followed by that record as adults. Rep. Alexandria Ocasio-Cortez (D–N.Y.), hardly a Second Amendment enthusiast, raised that point earlier this month, saying she was concerned about "the expansion of background checks into juvenile records."
The Bipartisan Safer Communities Act not only blocks gun sales to young adults with disqualifying juvenile records. It permanently strips them of their Second Amendment rights, adding the phrase "including as a juvenile" to the list of criteria that make gun sales to certain buyers illegal. Current law makes it a felony for "any person" to transfer a gun when he knows or has "reasonable cause to believe" the recipient is disqualified. As amended by this bill, that provision would prohibit transfers to people with disqualifying juvenile records, even after they turn 21.
That means a teenager who is convicted of a crime punishable by more than a year of incarceration would not be allowed to buy firearms as an adult. Likewise for a teenager who is subjected to involuntary psychiatric treatment, provided that happened "at 16 years of age or older." Those changes magnify the irrationality and injustice of the current rules, which criminalize firearm possession long after a conviction or commitment order, regardless of whether a would-be gun owner has ever done anything to suggest violent tendencies. It is especially perverse to deprive adults of their constitutional rights based on what they did (or what was done to them) when they were minors.
That policy looks even more questionable when you compare it to the bill's treatment of the "boyfriend loophole." Under current law, people are prohibited from owning guns if they have been convicted of a "misdemeanor crime of domestic violence" against an "intimate partner." The latter phrase is defined to include a current or former spouse, a current or former cohabitant, and a parent of the misdemeanant's child. The Bipartisan Safer Communities Act expands that definition to include participants in "a current or recent former dating relationship."
The new language requires "a continuing serious relationship of a romantic or intimate nature," as evidenced by "the length of the relationship," "the nature of the relationship," and "the frequency and type of interaction between the individuals involved in the relationship." This expansion includes two notable qualifications: It does not apply to domestic violence misdemeanors committed before the law takes effect, and the gun-possession ban lasts just five years.
Oddly, the bill does not extend that time limit to the misdemeanors already covered by the domestic violence provision. As long as they do not commit any additional violent crimes, boyfriends get their Second Amendment rights back after five years, but only if they never lived with their victims, married them, or produced children with them. Other "intimate partners" still lose their rights permanently. That distinction is puzzling if legislators think misdemeanors like these are not grave enough to justify such a lifelong deprivation.
So is the distinction between violent boyfriends and juvenile offenders or psychiatric patients. If a man who assaults his girlfriend can safely be trusted with guns five years later, why should a juvenile criminal or psychiatric record forever prevent someone from legally buying firearms? If anything, a presumption of rehabilitation seems more justified in the latter case.
Still, this bill breaks new ground by acknowledging that time limits are appropriate for certain kinds of offenses. Having established that precedent, Congress should reconsider the lifelong ban for people with adult felony records, which applies whether or not their crimes involved violence, and the lifelong ban for people subjected to involuntary psychiatric treatment, which applies even if they were never deemed a threat to others. If violent boyfriends can automatically recover their Second Amendment rights, why can't former marijuana dealers or formerly suicidal psychiatric patients?
Red flag laws, which authorize court orders that suspend the gun rights of people who are deemed a threat to themselves or others, typically for a year, raise a similar issue. Judges charged with distinguishing between genuinely dangerous individuals and respondents who are mistakenly (or maliciously) portrayed as such have a strong incentive to err on the side of issuing orders. It is therefore important that such laws include strong due process safeguards.
The Bipartisan Safer Communities Act, which approves federal grants to states with "extreme risk protection order programs," says eligible programs must respect "the Bill of Rights," including "the substantive or procedural due process rights guaranteed under the Fifth and Fourteenth Amendments." But the bill's specific requirements fall far short of that aspiration.
The bill says eligible programs "must include, at the appropriate phase to prevent any violation of constitutional rights, at minimum, notice, the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses." While all of the 19 states with red flag laws eventually give respondents a chance to rebut the allegations against them, all of those laws also authorize temporary, ex parte orders, which can suspend the respondent's gun rights for weeks without a hearing. The Bipartisan Safer Communities Act says nothing about the criteria for those orders or how long they should last.
The bill says respondents must have "the right to be represented by counsel at no expense to the government." That means states have no obligation to provide counsel for respondents who cannot afford to pay a lawyer, leaving them to navigate a complicated and daunting process on their own.
To be eligible for grants, the Bipartisan Safer Communities Act says, states must require "heightened evidentiary standards," which sounds good but does not amount to much as defined by the bill. It says the standards must be "not less than the protections afforded to a similarly situated litigant in Federal court." The standard that applies in federal civil cases is "a preponderance of the evidence," which in this context means it is more likely than not that the respondent poses a risk.
Most states with red flag laws require "clear and convincing evidence," a more demanding test. But either way, since red flag laws generally do not specify how big the risk has to be, they allow orders even in cases where it is extremely unlikely that the respondent would use a gun to harm himself or anyone else. The Bipartisan Safer Communities Act does not address that issue at all.
The bill also says nothing about who should be allowed to apply for red flag orders. In some states, petitioners are limited to police and prosecutors, who are supposed to independently and dispassionately determine whether there is enough evidence to seek an order. Other states allow a long list of relatives and acquaintances to directly petition courts, which increases the danger posed by personal bias or animosity.
The bill does say that eligible programs must "prevent reliance upon evidence that is unsworn or unaffirmed, irrelevant, based on inadmissible hearsay, unreliable, vague, speculative, and lacking a foundation." States are also supposed to establish "penalties for abuse of the program," although such cases are very difficult to prosecute, since they hinge on a petitioner's knowledge and intent. A civil remedy against petitioners who lie would be a stronger deterrent to abuse.
Senate Minority Leader Mitch McConnell (R–Ky.) says the Bipartisan Safer Communities Act is "a common sense package of popular steps that will help make these horrifying incidents less likely while fully upholding the Second Amendment rights of law-abiding citizens." The details of the bill provide ample grounds to be skeptical of both claims.