Why Didn’t a ‘Red Flag’ Law Prevent the Illinois Mass Shooting, and Would New Federal Rules Have Mattered?

“Gun controls that look sensible in theory frequently fail in practice, either because they are ill-suited to prevent mass shootings, do not apply, or were not enforced. That does not mean such laws have no effect on violent crime. But it does mean that Americans should be skeptical when politicians tout the lifesaving potential of a particular policy, especially when it also has the potential to deprive innocent people of their constitutional rights.

The New York Times notes that the 21-year-old man who prosecutors say admitted to murdering seven people and injuring dozens of others in Highland Park on Monday “was known to police” because of two incidents in 2019. In April 2019, Reuters reports, police visited his Highland Park home in response to a 911 caller who said he “had attempted suicide.” That September, police returned in response to “alleged threats ‘to kill everyone’ that he had directed at family members.”

During the second visit, police asked the young man if he was suicidal, which he denied. They “seized a collection of 16 knives, a dagger and a sword” that belonged to the 18-year-old’s father, which they later returned to him.

Police did not arrest the son because they lacked probable cause to believe he had committed a crime. “There were no complaints that were signed by any of the victims,” Chris Covelli, a sergeant with the Lake County Sheriff’s Office, told reporters yesterday. But Highland Park police reported the incident to the Illinois State Police, which took no action.

State police offered two explanations for that. First, the future mass murderer at that point did not have a firearm owners identification card (FOID), which is required to legally buy or own guns in Illinois, and had not applied for one. Second, Reuters reports, state police “said no relative or anyone else was willing ‘to move forward with a formal complaint’ or to provide ‘information on threats or mental health that would have allowed law enforcement to take additional action.'”

The state’s red flag law, which took effect at the beginning of 2019, authorizes police as well as family members to seek a “firearms restraining order” that bars the respondent from purchasing or possessing guns. But if the future killer’s relatives were uncooperative, collecting evidence to support a petition would have been difficult, since the case hinged on their account of his words and actions.

Like the other states with red flag laws, Illinois gives people who are concerned that someone poses a danger two options. They can obtain an “emergency” order, which is issued without a hearing or notice, if a judge decides there is “probable cause to believe that the respondent poses an immediate and present danger of causing personal injury to himself, herself, or another.” Such ex parte orders last up to two weeks, at which point the respondent actually gets a chance to respond.

Alternatively, or when an ex parte order is about to expire, a petitioner can seek a six-month order, which requires a hearing. The standard at that point is “clear and convincing evidence” that the respondent poses “a significant danger…in the near future.” If an order is issued, it can be renewed for another six months based on a showing that the respondent continues to pose a significant danger.

The evidence that a judge is required to consider includes “threats of violence or acts of violence by the respondent directed toward himself, herself, or another.” That certainly seems relevant in this case. But again, police would have had a hard time presenting such evidence without the family’s cooperation.

Three months after his second encounter with police, the alleged killer, then 19, obtained an FOID. Because he was younger than 21, he needed the written consent of a parent or guardian, which his father supplied. A lawyer representing the father told the Times “his client did not believe there was an issue” and “might not have understood what happened with the knife seizure because it did not happen in his house.”

If the father had recognized the threat his son posed, he presumably would not have supported the FOID application, which would have prevented the killer from legally buying guns until he turned 21—i.e., last September. But in that case, the father probably would have been willing to file or support a red flag petition.

The other requirements for an FOID largely track federal restrictions on gun ownership, which among other things disqualify people with certain kinds of criminal or psychiatric records. None of those disqualifications applied.

For the same reason, the alleged murderer passed background checks when he bought several guns, including the Smith & Wesson M&P 15 rifle that police say was used in the attack, in 2020 and 2021. According to Reuters, “police said the only offense detected…during background checks was for unlawful possession of tobacco in 2016.” There were “no mental health prohibiter reports.”

In retrospect, it is easy to say that state police made a disastrous mistake by failing to seek a red flag order. Based on documentation of the two police calls, they might have met the probable-cause requirement for an ex parte order. But presenting clear and convincing evidence of a continuing threat to justify a six-month order was another matter. If no one with relevant knowledge was willing to come forward, it is hard to see how police could have satisfied that standard. And even if they had, the order would have had to be repeatedly renewed to block the gun purchases, the last of which happened two years later.”

The Supreme Court’s new gun ruling means virtually no gun regulation is safe

“The Second Amendment states that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Thus, it is the rare constitutional provision that not only declares the existence of a right, but also states the reason why this right exists. The purpose of the Second Amendment is to protect “a well regulated Militia.” That’s what the plain text of the Constitution provides.
But Thomas’s opinion in Bruen, much like the Court’s earlier decision in District of Columbia v. Heller (2008), thumbs its nose at the text of the Constitution.”

“The immediate impact of Bruen is that handguns — which are responsible for the overwhelming majority of gun murders in the United States — are likely to proliferate on many American streets. That’s because Bruen strikes the types of laws that limit who can legally carry handguns in public, holding that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
The case involves a 109-year-old New York state law which requires anyone who wishes to carry a handgun in public, whether openly or concealed, to demonstrate “proper cause” before they can obtain a license to do so. An applicant must show “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”

Similar laws exist in five other states — California, Hawaii, Maryland, Massachusetts, and New Jersey — plus the District of Columbia. Together, these jurisdictions make up about a quarter of the US population, and a much higher percentage of the country’s urban population. In effect, that has meant very few residents of those states have been able to legally carry a handgun in public.

Writing solely for the Court’s Republican appointees, Justice Clarence Thomas strikes down New York’s century-old law. He also establishes a whole new (confusing) framework for evaluating gun control laws. Bruen establishes a “text, history, and tradition test” that purports to be rooted in, well, the text of the Constitution, and the history of English and early American gun laws.

In reality, however, Thomas’s new test takes extraordinary liberties with the text of the Second Amendment, which explicitly states that the purpose of the right to bear arms is to protect service in a militia.

And when it comes to “history,” “the Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical,” as Breyer chastises Thomas in dissent. That’s because judges are ill-equipped to conduct the kind of multi-century historical survey that Thomas’s new framework demands.

Worse, Thomas announces that the government bears the burden of showing that any gun law “is consistent with this Nation’s historical tradition of firearm regulation.” But if “tradition” is so important, why must New York’s 100-year-old law fall? As a practical matter, moreover, that Thomas places the burden of proof on the government means many gun laws are likely to fall because, when the historical record is unclear, the government loses.”

“As the Court explained in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias, and the amendment must be “interpreted and applied with that end in view.”

But Heller upended that. And quoting from Heller, Thomas writes that “individual self-defense is ‘the central component’ of the Second Amendment right.” And therefore gun regulations should be judged according to whether they undermine this atextual purpose invented by Republican appointees to the Supreme Court.

Similarly, Thomas writes that courts should determine whether a modern-day gun regulation fits within the nation’s historical traditions by drawing “historical analogies” to early American gun laws.

Thomas’s opinion suggests that these analogies may need to be drawn to laws that existed in 1791, when the Second Amendment was ratified; or that they may need to be drawn to laws that existed in 1865 — when the Fourteenth Amendment, which requires states to comply with the Second Amendment, was ratified. It declines to resolve questions about which date matters, however, adding another layer of confusion for judges forced to apply Bruen.

In any event, there are fairly obvious reasons why it is hard to draw reliable analogies between modern-day regulations and laws from earlier centuries. Federal law, for example, prohibits civilian ownership of machine guns. But the machine gun was invented in 1884. So a judge searching for early American laws regulating automatic weapons will come up empty, because machine guns did not exist during either the Founding Era or the Reconstruction Era. Does this mean that a ban on machine guns is unconstitutional?

Thomas also writes that “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” In other words, modern gun laws that address problems that existed in the 1700s are likely to fall, unless similar laws existed in the 18th century.

For this reason, Thomas concludes that a handgun ban like the one struck down in Heller is unconstitutional because the framers did not ban handguns in order to combat the problem of “firearm violence in densely populated communities.”

But this reasoning is anachronistic. According to the 1790 census, New York City had only 33,131 residents around the time when the Second Amendment was ratified. The second-largest city, Philadelphia, had fewer than 29,000 residents.

Eighteenth-century Americans, in other words, simply did not confront the problem of “firearm violence in densely populated communities.” The most densely populated communities in the 18th-century United States had roughly the same number of people as a small town in modern-day America.”

“this litany of long-forgotten laws does little to clarify the question of what the framing generation (or perhaps people during Reconstruction) thought about the right to carry a firearm without a permit on city streets. The bottom line is that the six Republican appointees surveyed many centuries worth of gun laws and concluded that they support the Republican Party’s preferred stance on firearms; while the three Democratic appointees surveyed the same laws and concluded that they support the Democratic Party’s preferred stance on firearms.

In fairness, Thomas does offer a workaround for the problem that many modern weapons — from machine guns to intercontinental ballistic missiles — did not exist until very recently and therefore were not regulated by early American lawmakers.

The lesson of history, Thomas claims, is that the Second Amendment protects the right of civilians to carry weapons that “are ‘in common use at the time.’” So an amendment that may have protected the right to own a musket in 1790 now protects the right to own a handgun, because handguns are now commonly used by civilians. Similarly, even Thomas would likely concede that the Second Amendment does not permit civilians to own tanks, nuclear warheads, or other weapons that are not commonly possessed by civilians in 2022.

Judges will no doubt have an easier time determining what kinds of guns are in common use in 2022 than they will determining what 18th-century gun laws have to say about the B-2 stealth bomber. But Thomas’s need to rely on such a workaround from his “text, history, and tradition” framework only emphasizes the uselessness of that framework.”

Congress passes a landmark gun control package

“The Bipartisan Safer Communities Act, which passed the Senate 65-33 after weeks of negotiations, doesn’t go as far as many Democrats wanted. But it introduces tailored reforms meant to incentivize states to keep guns out of dangerous people’s hands, provide new protections for domestic violence victims, enhance screening for gun buyers under the age of 21, and crack down on illegal gun purchases and trafficking.

The bill also provides billions of dollars in additional funding for school safety and mental health resources. Democrats have stressed they don’t believe that America’s gun violence epidemic can be solved by investments in mental health resources, as Republicans have argued, but have said that they won’t pass up the opportunity to put more money toward mental health.”

“Ultimately, 15 Republicans and 50 members of the Democratic caucus ended up joining them in voting for the bill. The vote was bipartisan on the House side too, with 14 GOP lawmakers — including Rep. Tony Gonzales, whose district includes Uvalde — voting yes.”

3 takeaways from Texas’s investigation of the Uvalde school shooting

“There’s only so much that schools can do to defend against a determined individual with access to guns. Militarizing public schools doesn’t foster a welcoming learning environment, nor is it particularly cost-effective for taxpayers.

“Installing bulletproof glass in all the windows — stuff like this is hideously expensive and not sensible. There’s only so far you can go to harden a public facility,” said Robert Spitzer, a professor at SUNY Cortland who studies the politics of gun control.

But a simple security upgrade could have made it harder for the shooter to enter the school: ensuring that the doors were locked. There were three exterior doors in the west building where the shooting took place, and all three had been left unlocked, according to the report. The door to one of the classrooms where the shooter took his victims was also known to have a faulty lock, but no one had created a work order to repair it. School staff also frequently propped doors open, especially for substitute teachers who didn’t have their own keys.”

What would it mean to treat guns the way we treat cars?

“The decline of motor vehicle deaths in America over the past two decades is part of a broader trend that began in the 1960s. Ralph Nader’s seminal 1965 exposé, Unsafe at Any Speed, catalyzed an auto safety movement that culminated in the creation of the National Highway Traffic Safety Administration (NHTSA), which set up the infrastructure for automobile safety.

From the 1970s onward, the NHTSA would maintained a database on motor vehicle-related deaths, make research investments, and provide safety certifications for cars on the market, incentivizing auto companies to adopt safety procedures. The work of the NHTSA and civil society groups like the Insurance Institute for Highway Safety helped usher in a new era where safety features like seat belts and airbags became standardized. All of this, along with measures like universal state licensing of drivers and registration of cars, led to the decline in youth and overall American motor vehicle mortality. The CDC would eventually tout this decline as one of the country’s biggest public health achievements of the 20th century.

And as Lee recounts in the NEJM article, that progress continued into the 21st century. In 1998, frontal airbags became mandatory in all cars and trucks sold in the US. Other improvements like automatic emergency braking, blind-spot detection, side airbags, and rear-facing cameras also contributed to an improved auto safety landscape. “What we’ve seen is more than a half-century of efforts to make the automobile safer,” said Mitchell Moss, a professor of urban policy and planning and director of the Rudin Center for Transportation at New York University.

If cars went one way with safety, guns went the other. Guns are one of the only consumer goods whose safety is not regulated by any government agency. Gun manufacturers are also very insulated from lawsuits, and perhaps consequently, have little incentive to design safer guns, such as “smart guns” that would only be operable by the users they are registered to. As Moss said, “We really have a Wild West approach to the manufacture of weapons in this country.””

The problem with schools turning to surveillance after mass shootings

“The problem is that there’s very little evidence that surveillance technology effectively stops these kinds of tragedies. Experts even warn that these systems can create a culture of surveillance at schools that harms students. At many schools, networks of cameras running AI-based software would join other forms of surveillance that schools already have, like metal detectors and on-campus police officers.

“In an attempt to stop, let’s say, a shooter like what happened at Uvalde, those schools have actually extended a cost to the students that attend them,” Odis Johnson Jr, the executive director of the Johns Hopkins Center for Safe and Healthy Schools, told Recode. “There are other things we now have to consider when we seek to fortify our schools, which makes them feel like prisons and the students themselves feel like suspects.”

Still, schools and other venues often turn to surveillance technology in the wake of gun violence.”

“Even more advanced forms of surveillance tech have a tendency to miss warning signs. So-called weapon detection technology has accuracy issues and can flag all sorts of items that aren’t weapons, like walkie-talkies, laptops, umbrellas, and eyeglass cases. If it’s designed to work with security cameras, this tech also wouldn’t necessarily pick up any weapons that are hidden or covered. As critical studies by researchers like Joy Buolamwini, Timnit Gebru, and Deborah Raji have demonstrated, racism and sexism can be built inadvertently into facial recognition software. One firm, SN Technologies, offered a facial recognition algorithm to one New York school district that was 16 times more likely to misidentify Black women than white men, according to an analysis conducted by the National Institute of Standards and Technology. There’s evidence, too, that recognition technology may identify children’s faces less accurately than those of adults.”

“Research conducted by Johnson, the Johns Hopkins professor, and Jason Jabbari, a research professor at Washington University in St. Louis, found that a wide range of surveillance tools, including measures like security cameras and dress codes, hurt students’ academic performance at schools that used them. That’s partly because the deployment of surveillance measures — which, again, rarely stops mass shooters — tends to increase the likelihood that school officials or law enforcement at schools will punish or suspend students.

“Given the rarity of school shooting events, digital surveillance is more likely to be used to address minor disciplinary issues,” Barabas, the MIT researcher, explained. “Expanded use of school surveillance is likely to amplify these trends in ways that have a disproportionate impact on students of color, who are frequently disciplined for infractions that are both less serious and more discretionary than white students.”

This is all a reminder that schools often don’t use this technology in the way that it’s marketed. When one school deployed Avigilon’s software, school administrators used it to track when one girl went to the bathroom to eat lunch, supposedly because they wanted to stop bullying. An executive at one facial recognition company told Recode in 2019 that its technology was sometimes used to track the faces of parents who had been barred from contacting their children by a legal ruling or court order. Some schools have even used monitoring software to track and surveil protesters.”