KEY VOTE: “NO” ON THE BIPARTISAN SAFER COMMUNITIES ACT

The Senate will soon vote on the Bipartisan Safer Communities Act (S. 2938), a package of different gun control proposals stitched together with school safety and mental health provisions. As usual for Congress these days, the bill was negotiated and written by a small group of senators in secrecy, with the rest of the Senate expected to vote on the sweeping legislation just days after receiving the text. Expecting senators to understand the impacts of an 80-page bill in just 48 hours is irresponsible, not to mention the fact that it prevents the American people from weighing in on the package and having their voices heard. That seems to be by design.

The most concerning policy in the bill is an expansion of the Byrne-JAG grant program to incentivize states to adopt gun confiscation orders known as red-flag laws. These laws, which allow for a court-ordered, temporary revocation of an individual’s right to keep and bear arms, present significant constitutional issues and risk violating the due process rights of Americans. While a red flag law could theoretically be written in a way that passes constitutional muster, none of those currently in existence at the state level meet that threshold, and this bill would do little to ensure states that accept the funding for red-flag laws adhere to adequate constitutional standards.

The bill could have set explicit minimum standards to protect due process in the states that accept red-flag law funding, like requiring the use of a “clear and convincing evidence” standard or requiring that emergency orders be quickly followed by full-fledged hearings (such as within 72 hours, as required for emergency mental health evaluations). Instead, the bill uses several paragraphs of ambiguous language that would be left up to courts and the Attorney General to interpret. Many state and federal courts have already deemed even the worst of these laws to pass constitutional muster, while the Biden DOJ’s “model red flag” proved that the current administration cares little about true due process protections. In short, there is little in this bill to prevent taxpayer funds from going to support the worst state red-flag laws that trample all over the Constitution. This includes laws like that of New Mexico, which make a mockery of due process by stripping individuals of a fundamental right based on a “preponderance of the evidence” – an incredibly low standard that falls far short of the “clear and convincing evidence” required in an analogous mental health context. In effect, members who vote in favor of this funding could end up being responsible for requiring that their constituents fund the most egregious of these laws that make “take guns first, ask questions later” the standard operating procedure. It is a terrible policy to risk money being taken from Americans in one state and given to the government of another state to fund an unconstitutional red-flag law.

Additionally, the legislation could also punish young, responsible Americans for the horrendous acts of a small group of their peers by potentially creating de facto waiting periods for lawful buyers under the age of 21. The bill requires the National Instant Criminal Background Check System (NICS) to contact the juvenile criminal record system of the buyer’s state, the state’s mental health custodian, and a “local law enforcement agency” where the buyer lives to check for disqualifying records. While it may be worthwhile to include recent juvenile records in a background check for young purchasers, the bill does not set up a process for doing so in a streamlined manner. Moreover, there is no reason to believe that contacting a local law enforcement agency has any purpose other than to slow down the process, as these agencies do not typically have access to disqualifying records that are not already in the NICS system.

Moreover, the bill says the government has up to three business days to decide whether to investigate further, at which point it may take up to ten business days, leading to a possible waiting period for those between the ages of 18 and 21—a group of Americans who willingly go to war to defend our rights when necessary.

Congress should incentivize states to harden schools to protect our children and improve mental health programs, without infringing on the rights of responsible gun owners or funding state programs that do the same. While the bill does take some steps to address these issues, the package as a whole falls short of ensuring our constitutionally protected rights are upheld. Compromise may be a necessary part of legislating, but Congress cannot pass compromises that risk serious infringements on the constitutional rights of American citizens. Senators should stand up for Second Amendment rights and vote against this legislation.