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By Ian Karbal, Mountain State Spotlight
A bipartisan agreement on gun control legislation has long felt out of reach for U.S. lawmakers. Years of promises followed by inaction have become the norm as America continues to see more deaths from firearms than any other high-income country.
But in the last few weeks, a spate of mass shootings across the country has renewed the conversation. Even in West Virginia, at least three people were killed, including a Nicholas County Sheriff’s deputy, and another injured by guns just over the weekend. While no outcome is guaranteed, a group of U.S. senators, including both Democrats and high-profile Republicans, are working to craft legislation that could earn support from both parties.
Regardless of the outcome, little is likely to change in West Virginia, at least. In 2021, state lawmakers passed a law that would effectively prevent state and local police from enforcing any federal gun law that exceeds those existing in the state.
The 2021 law made specific mention of “red flag” laws, saying they were “anathema to law-abiding West Virginians.” Such laws allow law enforcement, or in some cases a person’s immediate family, to ask a judge to temporarily take someone’s guns if they believe the person might harm themselves or others.
Such laws have emerged as one of the most likely outcomes of congressional negotiations and already exist in 19 states in the country.
Advocates call these kinds of laws one of the best ways to prevent mass shootings, short of comprehensive gun control legislation that would limit access to certain firearms altogether. But opponents believe that they violate the principle of due process and even undermine the Second Amendment itself.
What is a ‘red flag’ law?
Federal and state laws, including in West Virginia, already allow officials to take people’s guns away. If someone is involuntarily committed to a psychiatric facility, has committed certain felonies or is subject to a domestic violence restraining order, they’re banned from owning firearms.
But researchers have said that a person’s behavior, rather than criminal activity or a diagnosable mental illness, is the likeliest indicator that they may commit a mass shooting.
Jeff Daniels, a psychologist and professor at West Virginia University, has studied the behavior of mass killers since shortly after the Columbine High School massacre in 1999, which happened near where he grew up. Since then, Daniels has collaborated in developing detection and best practices, including with the FBI.
“A lot of people focus on historical factors for the individual,” Daniels said. “Their background, were they abused as a child…”
But Daniels believes behavior is a much better way to predict whether someone is likely to carry out an attack.
That’s where red flag laws come in. Many of the warning signs Daniels has identified — such as suddenly stockpiling weapons, warning people to avoid their school or place of work at a specific time or suddenly developing an interest in extremist message boards and previous mass shooters — are entirely legal behaviors and may be harmless. But with a red flag law, if law enforcement, a person’s family member or a school official can convince a judge that this behavior is out of the ordinary and alarming, it could be used as grounds to temporarily revoke someone’s guns.
The person would then get a chance, within days or weeks, to argue to a judge that they should get their weapons back.
Why are red flag laws controversial?
Of the 19 states with red flag laws on their books, 14 passed them after a shooter killed 17 people in 2018 at a high school in Parkland, Florida. The laws were passed in a number of Republican-led states, including Florida, and even saw tepid support from the National Rifle Association.
But over time, pro-gun views on the policy have changed.
Some Second Amendment advocates believe that allowing a judge to order the removal of someone’s guns without a trial, or even a hearing, violates not only a person’s right to bear arms, but their right to due process.
“Creating a system of: your neighbor makes a complaint about your sanity and they take your firearms before even a proceeding … that to me is a violation of your Fourth and Fifth Amendment rights,” said Delegate Brandon Steele, R-Raleigh. “It’s offensive to me, as an American.”
That’s why Steele introduced the anti-red flag bill just after the election of President Joe Biden, who advocated for gun control during his campaign. Just before the bill was passed, following another string of mass shootings in Colorado, California and South Carolina, Biden directed his administration to release model red flag laws for states to implement. Steele’s bill was amended to reference those specifically, calling them “anathema to law-abiding West Virginians.”
What about West Virginia’s law?
Basically, West Virginia’s law says that no federal court could order a West Virginia police officer to seize anyone’s guns, even if a judge permitted it under federal law. It also bars West Virginia judges from issuing any such order.
While federal law trumps state law, Steele said the bill can stand because it’s framed as an “anti-commandeering” law — essentially saying that federal regulators and law enforcement agents can still enforce their laws in West Virginia, they just can’t “commandeer” the state’s resources by asking state or local police to carry out their orders as they relate to gun control.
Further guidance on the law from state Attorney General Patrick Morrisey’s office tells officers in no uncertain terms that they may not carry out arrests or execute search warrants solely because of the violation of gun laws that exist only on the federal level, and that doing so “should result in appropriate disciplinary action.”
Morrisey did not respond when asked whether he would amend his guidance for law enforcement if a federal law passed with bipartisan support. He has previously been critical of potential gun control measures passed by executive order, something explicitly noted in West Virginia’s law as a reason for its existence.
U.S. senators are also considering a grant program that would reward states that create their own red flag laws, and West Virginia lawmakers could theoretically reverse their own law and pass one. However, the broad legislative support for last year’s law appears to make such a move unlikely.
Where do West Virginia’s senators stand on red flag laws?
Both of West Virginia’s senators, Republican Shelley Moore Capito and Democrat Joe Manchin, have indicated they’d be open to supporting some form of bipartisan gun safety measure but have been unclear on exactly what that might look like.
“[Senate Majority Leader Charles] Schumer has indicated that he would like to work together with Republicans and Democrats to find a bipartisan path forward,” Capito said through a spokesperson. “We’ll have to see what comes out of these bipartisan talks on any legislation.”
A spokesperson for Manchin said that the senator “is engaged in bipartisan conversations on potential solutions to prevent gun violence, including red flag laws, and will continue working to find a compromise that receives strong support from both sides of the aisle.”
Speaking on the MetroNews show Talkline on Friday, Manchin said he would be open to a number of policies, including a federal red flag law, raising the age limit for gun sales from 18 to 21, and banning certain high-powered semi-automatic weapons and weapon accessories.
Manchin, however, has once again refused to support an elimination of the filibuster, which would allow Democrats to pass gun control legislation without Republican support. He has taken a similar stance when Democratic senators have hoped to use their slim majority to pass voting rights legislation, or codify Roe v. Wade.
It’s still unclear if U.S. senators will be able to reach a bipartisan agreement on red flag laws, or any other gun control measure.
If a federal red flag law were to pass, it would likely face multiple legal challenges from opposing states.
While lower courts have upheld these laws in multiple states and found that they do not violate a person’s Second Amendment rights, no case has made it to the U.S. Supreme Court, which would be the ultimate arbiter were a case to make it that far.
And even if a red flag law were to pass, WVU researcher Daniels says it’s only the first step. Especially in schools, adults have to make an effort to pay attention and offer support to identify potential shooters in the first place.
Reach reporter Ian Karbal at firstname.lastname@example.org