By Zachary Segal, J.D Candidate, Junior Editor, Touro Law Review

In the wake of the Marjory Stoneham Douglas High School massacre in Parkland, Florida, students[1], State governments,[2] retailers,[3] and even the President[4], are calling on Congress to enact stricter firearm regulation, increased mental health screening, and added security for schools. These calls are a bi-product of the growing frustration that mass shootings, caused by gun violence and unregulated access to firearms by mentally ill individuals, is sweeping the nation by storm.[5] Congress, however, has rebuked these calls arguing the matter should be dealt with locally[6] while others argue mental health, not guns, cause mass shootings.[7]

Considering Congressional efforts, following mass shootings, have been futile and there is disagreement as to the cause—maybe it is time for Congress to pass the torch to the States pursuant to its Article I power to “Lay and collect Taxes … for the common defense and general Welfare of the United States.”[8] This power includes the ability to incentivize States with funds conditioned on their enacting desired laws, regulations, or guidelines; this practice is called conditional spending.[9] Thus, one solution to the national mass-shooting crisis is to entice States with renewed funds for mental health funds conditioned on States passing, for example, “red flag” laws.[10] Last May, Rep. Carbajal (CA) introduced H.R. 2598, which conditions funds for red flag laws on State’s enacting them.[11]

Red flag laws, also known as extreme risk laws, allow a judge to confiscate firearms belonging to an individual who, upon a finding of probable cause, poses an extreme risk to himself or others.[12] In Connecticut, for example, a report is issued to the police regarding an individual who is deemed to pose an imminent risk to himself or others.[13] The police, then, conduct an independent investigation and if there is probable cause, two officers must swear the individual poses an imminent risk.[14] The affidavit is submitted to the local State Attorney who decides whether to request a warrant.[15] If the State Attorney so decides, the warrant request is presented to a Superior Court Judge who determines whether there is in fact probable cause to seize the firearms.[16] If the Judge finds probable cause, the warrant is issued and the police may search for, and seize any firearms or ammunition located at the individual’s residence.[17] Finally, following a fourteen day cooling off period, the State must prove by clear and convincing evidence the individual whose guns were seized presents a continued imminent risk to himself or others.[18] If the State carries its burden, the individual loses the firearms for a year and cannot purchase new ones.[19]

Presently, five states have red flag laws, nineteen had legislation pending prior to Parkland, and five have introduced legislation following the mass shooting in Parkland, Florida.[20] This proposal, like H.R. 2598, in effect, removes the federal government from the equation by placing the impetus on the States to accept, or reject, the funds thereby making States politically accountable to their constituents. Given the recent cuts in FY 2018’s budget for mental health,[21] Congress need not incentivize the States with funding by restricting current funds. Rather, H.R. 2598, or a new bill, should renew mental health funds through the prescribed method detailed below.

The 1987 Supreme Court case, South Dakota v. Dole,[22] articulated four limitations Congress must satisfy before States can accept the conditional funds: (1) the spending must be for the general welfare; (2) the condition must be clear and unambiguous; (3) condition has to be reasonably related to the purpose of the expenditure; and (4) the condition is not barred another constitutional provision.[23] In Dole, the Court held States were eligible to accept extra highway funding because Congress’s condition of raising the drinking age to receive the funds were reasonably related to reducing drunk driving accidents.[24] The harbinger, however, to this conditional spending initiative involved whether it violated the Twenty-first Amendment.[25]

In Dole, the Court held because Congress was conditioning funds to address a dangerous situation—highway accidents caused by differing state drinking ages—it was spending for the general welfare.[26] The Court noted, moreover, it generally defers to Congress regarding its explanation behind why the conditioned funds are for the general welfare.[27]  Here, Congress would be conditioning funds to address a similar dangerous situation—mass shootings caused by easy access to firearms by the mentally ill.[28] The second limitation of Dole, likely will not pose a problem to Congress so long as the Congressional act “clearly and unambiguously” informs States it will receive funds for mental health and school safety conditioned on their enacting red flag laws.[29] The third limitation, too likely will be satisfied because the conditions on federal funds are related to a national concern i.e. ending mass shootings.[30]

The fourth limitation, however, presents the looming question as to whether the suggested conditional spending plan violates another Constitutional provision—the Second Amendment. In Dole, the Court rejected petitioner’s argument that the Twenty-first amendment barred Congress from spending and regulating an activity already prohibited, alcohol.[31] The Court held “the constitutional limitations on Congress when exercising its spending power are less exacting than those on its authority to regulate directly.”[32] As a corollary, the Court explained the Tenth Amendment was not being violated because Congress was not offering funds “to induce the States to engage in activities that would themselves be unconstitutional.” In other words, unduly coercive incentives are unconstitutional.

While satisfying this prong may appear troublesome, it is not thanks to District of Columbia v. Heller.[37] Heller declared unconstitutional a D.C. statute prohibiting handgun possession in the home for self-defense.[38]Although Heller declared the Second Amendment creates an individual right to bear arms for self-defense in the home,  it maintained the right is not absolute.[39] Specifically, the Second Amendment does not protect the right of citizens to carry arms for any sort of confrontation or limit “longstanding prohibitions on the possession of firearms by … the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as school and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”[40] Two years later, the Court, in McDonald v. City of Chicago[41] held the right protected in Heller is incorporated against the States through the Fourteenth Amendment.[42] In other words, neither the federal government, nor state governments can infringe upon the right to bear arms for self-defense in the home, but can regulate arms consistent with the dicta in Heller.[43]

Red flag laws, despite criticism that they violate the Second Amendment, have been upheld in California,[44] Connecticut,[45]and Indiana[46] courts. The courts uniformly relied on the dicta in Heller in upholding the constitutionality of the State’s red flag law.[47] Moreover, contrary to Republican concerns regarding Due Process,[48] the aforementioned State courts found no Due Process issues with the red flag laws.[49]

Following the mass shooting in Parkland, eighteen states, including the District of Columbia, have introduced red flag laws to address the mass-shooting crisis.[50] Conversely, some States are making access to firearms easier to provide citizens with the chance to defend them against a shooter.[51] While the means adopted by the States may differ, the end is uniform among them—ending massing shootings. Proposals, like increased background checks[52] and arming teachers[53] likely will not address the mutually agreed upon cause of mass shootings, mental health.

However, at least one study on the impact of Connecticut’s red flag law on firearm related suicides, suggests such laws decrease these types of suicides.[54] Moreover, considering in most of the recent mass shootings authorities were warned the shooter might inflict harm on himself or others[55], red flag laws will give law enforcement the opportunity to proactively act on these concerns.[56]

Conditioning mental health funds on State’s enacting red flag laws is both sensible and Constitutional. H.R. 2598 provides Congress with an opportunity to act without imposing its federal power on individual States. Considering H.R. 2598 was proposed prior to Parkland, perhaps Congress should condition renewed mental health funds in conjunction with funds for the red flag laws. Should the States reject the funds, however, Congress still made the effort and the States, not Congress, will be accountable to its citizens. In conclusion, considering Congress is unable, or unwilling, to pass federal legislation, it should enable the States to do so with something more practical than offering “thoughts and prayers.”

 

 

 

 

 

[1] Ryan Grenoble, School Walkouts Go Nationwide As Students Push For Gun Control, Huffington Post, February 21, 2018, https://www.huffingtonpost.com/entry/school-walkout-gun-control-protest_us_5a8d9afae4b00a30a251a02d (last visited Feb 27, 2018).

[2]Katharine Q. Seelye & Jess Bidgood, What Are States Doing About Gun Violence After the Florida Shooting?, New York Times, February 26, 2018, https://www.nytimes.com/2018/02/26/us/gun-control-laws.html (last visited Feb 27, 2018). (“It is not just in Florida where the mass shooting at a high school is prompting lawmakers to take up gun control legislation. The same thing is happening across the country, from Washington to Vermont.”); See also Ella Nilsen, 5 Republican and Democratic governors on what states can do on gun control, Vox, February 26, 2018, https://www.vox.com/policy-and-politics/2018/2/26/17049442/republican-democratic-governors-states-gun-control (last visited Feb 27, 2018).

[3] Julie Creswell & Michael Corkery, Walmart and Dick’s Raise Minimum Age for Gun Buyers to 21, New York Times, February 28, 2018, https://www.nytimes.com/2018/02/28/business/dicks-major-gun-retailer-will-stop-selling-assault-style-rifles.html (last visited Feb 28, 2018). (Walmart announced it would no long sell guns or ammunition to people under twenty-one years old. Dick’s Sporting Goods also raised the age for selling guns or ammunition to 21 as well as discontinuing the sale of assault style rifles.)

[4] Jeremy Diamond & Dan Merica, Trump voices support for certain gun control measures, CNN, February 28, 2018, https://www.cnn.com/2018/02/28/politics/gun-laws-donald-trump-congress/index.html (last visited Feb 28, 2018); Ayesha Rascoe & Roberta Rampton, Trump pushes Congress for broad bill on guns after school shooting, Reuters, February 28, 2018, https://www.reuters.com/article/us-usa-guns-trump/trump-pushes-congress-for-broad-bill-on-guns-after-school-shooting-idUSKCN1GC2M0 (last visited Feb 28, 2018).

[5]  See generally supra note 1-4.

[6] Susan Cornwell & Richard Cowan, U.S. congressional Republicans reject new limits on guns, Reuters, February 27, 2018, https://www.reuters.com/article/us-usa-guns/u-s-congressional-republicans-reject-new-limits-on-guns-idUSKCN1GB0K8 (last visited Feb 28, 2018) (House Speaker Paul Ryan, regarding arming teachers, was that “Local governments, not Congress, should decide whether to arm teachers.”

[7] Kimberly Leonard, Alex Azar says HHS will be ‘laser focused’ on mental health following shooting, Washington Examiner, February 15, 2018, http://www.washingtonexaminer.com/alex-azar-says-hhs-will-be-laser-focused-on-mental-health-following-shooting/article/2649260 (last visited Feb 27, 2018); Jonathan M. Metzl & Kenneth T. MacLeish, Mental Illness, Mass Shootings, and the Politics of American Firearms, 105 American Journal of Public Healthy240–249 (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4318286/ (last visited Feb 27, 2018). (““Four assumptions frequently arise in the aftermath of mass shootings in the United States: (1) that mental illness causes gun violence, (2) that psychiatric diagnosis can predict gun crime, (3) that shootings represent the deranged acts of mentally ill loners, and (4) that gun control “won’t prevent” another Newtown (Connecticut school mass shooting).””).

 

[8] U.S. Const. art. I, § 8, cl. 1 (“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

[9] See infra note 22.

[10] See Gun Violence Restraining Order Act of 2017, H.R. 2598, 115th Cong. (2017); See also Red Flag Laws: Helping Prevent Mass Shootings, EverytownResearch.org (2018), https://everytownresearch.org/red-flag-laws-helping-prevent-mass-shooting/#foot_note_2 (last visited Feb 28, 2018).

[11] Id.

[12] Id.; See also Cal. Penal Code § 18125; Cal. Penal Code § 18150; Cal. Penal Code § 18175; Conn. Gen. Stat. § 29-38c; Ind. Code § 35-47-14-1; Ind. Code § 35-47-14-2; Ind. Code § 35-47-14-5; Ind. Code § 35-47-14-6; Ind. Code § 35-47-14-8; Oregon S. 719, 79th Leg., Reg. Sess. (Or. 2017)(not yet codified); Wash. Rev. Code § 7.94.030; Wash. Rev. Code § 7.94.040; Wash. Rev. Code § 7.94.050; Wash. Rev. Code § 7.94.080.

[13] Jeffrey W. Swanson, Michael A. Norko, Hsiu-Ju Lin, Kelly Alanis-Hirsch, Linda K. Frisman, Madelon V. Baranoski, Michele M. Easter, Allison G. Robertson, Marvin S. Swartz & Richard J. Bonnie, Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does it Prevent Suicides?, 80 Law and Contemporary Problems 179-208, 187 (2017),
https://scholarship.law.duke.edu/lcp/vol80/iss2/8  (last visited Feb 28, 2018);

[14] Id. (citing Conn. Gen. Stat. Ann. § 29-38c) (“The police take the report and must conduct an independent investigation to gather facts that might support a determination of “probable cause to believe that (1) a person poses a risk of imminent personal injury to himself or herself or to other individuals, (2) such person possesses one or more firearms, and (3) such firearm or firearms are within or upon any place, thing or person . . . .”); See also Cal. Penal Code § 18150(b)(1) (same); Ind. Code § 35-47-14-1 (same); Wash. Rev. Code § 7.94.030(3)(a) (same).

[15] Id.

[16] Id. (“In determining whether grounds for the application exist or whether there is probable cause to believe they exist, the judge shall consider: (1) Recent threats or acts of violence by such person directed toward other persons; (2) recent threats or acts of violence by such person directed toward himself or herself; and (3) recent acts of cruelty to animals as provided in subsection (b) of section 53-247 by such person. In evaluating whether such recent threats or acts of violence constitute probable cause to believe that such person poses a risk of imminent personal injury to himself or herself or to others, the judge may consider other factors including, but not limited to (A) the reckless use, display or brandishing of a firearm by such person, (B) a history of the use, attempted use or threatened use of physical force by such person against other persons, (C) prior involuntary confinement of such person in a hospital for persons with psychiatric disabilities, and (D) the illegal use of controlled substances or abuse of alcohol by such person.”); See also Cal. Penal Code § 18155 (same);

[17] Id.; See also Cal. Penal Code § 18160 (21 day cooling off period); Ind. Code § 35-47-14-5 (14 day cooling off period); Wash. Rev. Code § 7.94.050(5) (same).

[18] Id.

[19] Id.; See also Cal. Penal Code § 18175 (firearms are held by court for one year); Ind. Code § 35-47-14-6 (firearms are held by court until court determines individual can resume possession.); Wash. Rev. Code § 7.94.080(1) (firearms are held by court for one year at which point petitioner can request a new hearing).

[20] Jason Hanna & Laura Ly, After the Parkland massacre, more states consider ‘red flag’ gun bills CNN (2018), https://www.cnn.com/2018/03/07/us/gun-extreme-risk-protection-orders/index.html (last visited Mar 7, 2018).

[21]See HHS Office of the Secretary & Office of Budget (OB), FY 2018 Budget in Brief – SAMHSAHHS.gov(2017), https://www.hhs.gov/about/budget/fy2018/budget-in-brief/samhsa/index.html (last visited Mar 7, 2018) ($252,000,000 cut from mental health).

[22] 483 U.S. 203 (1987).

[23] Id. at 207-08.

[24] Id. at 211-12. (“Here Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose. But the enactment of such laws remains the prerogative of the States not merely in theory but in fact. Even if Congress might lack the power to impose a national minimum drinking age directly, we conclude that encouragement to state action found in § 158 is a valid use of the spending power.”)

[25] Id. at 209.

[26] Id. at 208.

[27]  483 U.S. 203, 207 (1987) (“The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of “the general welfare.”).

[28] See supra note 14, at 184 (“Moreover, individuals at high risk of violence commonly have access to firearms at home even if they would not qualify to buy a gun themselves, because they live in households with guns legally purchased by family members or others.”).

[29] Id. at 208 (“Second, we have required that if Congress desires to condition the States’ receipt of federal funds, it “must do so unambiguously …, enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.”); See also supra note. 10 (H.R. 2598: “In order to receive a grant under section 4, on the date that is 3 years after the date of enactment of this Act, each State shall have in effect legislation that—(1) authorizes a gun violence prevention order and gun violence prevention warrant in accordance with subsection (b); and (2) requires each law enforcement agency of the State to comply with subsection (c).”).

[30] Id. at 208-09 (“Indeed, the condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended—safe interstate travel. This goal of the interstate highway system had been frustrated by varying drinking ages among the States. … By enacting § 158, Congress conditioned the receipt of federal funds in a way reasonably calculated to address this particular impediment to a purpose for which the funds are expended.”).

[31] Id. at 209.

[32] Id.

[33] Id. at 210; See U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”); See also Printz v. United States, 521 U.S. 898, 935 (1997) (“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”).

[34] 567 U.S. 519, 581 (2012).

[35] Id. (“[T]he financial “inducement” Congress has chosen is  more than “relatively mild encouragement”—it is a gun to the head.”)

[36] Id.

[37] 554 U.S. 570 (2008).

[38] Id.

[39] Id. at 595.

[40] Id. at 687.

[41] 561 U.S. 742 (2010).

[42] Id. at 790.

[43] Id. at 782 (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  We repeat those assurances here.” (citations omitted)).

 

[44] City of San Diego v. Boggess, 216 Cal. App. 4th 1494, 1497 (2013) (“[B]oth Heller and McDonald identified an expressly nonexclusive list of traditional limitations on the right to bear arms, characterizing them as “presumptively lawful regulatory measures….” Section 8102, which prohibits a person detained under section 5150 from recovering their seized firearms upon proof by the seizing agency that returning the weapon would be likely to result in endangering that person or others, is such a regulatory measure. We reject that in Heller and McDonald the U.S. Supreme Court categorically invalidated such laws, which are designed to keep firearms out of the hands of a dangerous person.”).

[45] Hope v. State, 133 A.3d 519, 524-25 (Conn. App. Ct. 2016) (“Section 29-38c does not implicate the second amendment, as it does not restrict the right of law-abiding, responsible citizens to use arms in defense of their homes. It restricts for up to one year the rights of only those whom a court has adjudged to pose a risk of imminent physical harm to themselves or others after affording due process protection to challenge the seizure of the firearms. The statute is an example of the longstanding ‘presumptively lawful regulatory measures’ articulated in District of Columbia v. Heller. . . . We thus conclude that § 29-38c does not violate the second amendment.”).

[46] Redington v. State, 992 N.E.2d 823, 846 (Ind. Ct. App. 2013) (“[T]he United States Supreme Court has recently and repeatedly recognized the legitimate governmental purpose of prohibiting the mentally ill from possessing firearms. See McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010); District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008). The purpose of the Act is to provide a mechanism for the State to seize and retain firearms from persons it deems “dangerous,” which as Section 1 describes above, are persons who, due to mental instability, present risk of personal injury to themselves or others, be it imminent or in the future. Accordingly, and giving deference to the legislative decision, we conclude that the Act is rationally calculated to advance this legitimate governmental interest.”).

[47] Id.; See also supra note 43, 44.

[48] Lindsey McPherson, Democrats Push Bill They Say Could Have Prevented Parkland Shooting, Roll Call, February 16, 2018, https://www.rollcall.com/news/politics/democrats-push-bill-say-prevented-parkland-shooting (last visited Mar 7, 2018).

[49] Hope, 133 A.3d at 524.; Boggess, 216 Cal. App. 4th at 1503; Reddington, 992 N.E.2d at 848.

[50] See generally supra note 10, 12.

[51] See supra note 2 (Kansas introduced legislation to lower the age for concealed carry from 21 to 18 and allowing permits to carry on college campuses; South Dakota passed a law allowing people to carry guns at school and churches.).

[52] See supra note 13, at 183 (citing Jeffrey W. Swanson, Michele M. Easter, Allison G. Robertson, Marvin S. Swartz, Kelly Alanis-Hirsch, Daniel Mosely, Charles Dion & John Petrila, Gun Violence, Mental Illness, and Laws that Prohibit Gun Possession: Evidence from Two Florida Counties, 35 HEALTH AFF. 1067, 1067–75 (2016) (“Similarly, a substantial proportion of those at risk for committing violent crimes with guns do not have a record that would prohibit them from purchasing or possessing firearms.”).

[53] Michael Hansen, There are ways to make schools safer and teachers stronger-but they don’t involve guns Brookings (2018), https://www.brookings.edu/blog/brown-center-chalkboard/2018/02/27/there-are-ways-to-make-schools-safer-and-teachers-stronger-but-they-dont-involve-guns/ (last visited Mar 7, 2018).

[54] Supra  note 13, at 208.

[55] Andrew Gumbel, Mass shootings: why do authorities keep missing the warning signs? The Guardian (2018), https://www.theguardian.com/us-news/2018/mar/06/mass-shootings-fbi-law-enforcement-prevention (last visited Mar 7, 2018) (“In almost every case, behaviors were observed and caused concern, whether in the physical world or in cyberspace through emails and social media activity, and in many cases these were reported to law enforcement,” said John Cohen, a former senior counter-terrorism coordinator with the Department of Homeland Security who now conducts training on spotting potential mass killers.”)

[56] See supra note 13, at 185 (“Rather, in order to effectively deter and prevent people like Hicks [Chapel Hill, NC shooter who killed three Muslim students] from using guns in a harmful way, a different kind of law would have been needed: a legal tool to effectively remove guns from a dangerous person who already possesses them, that is, a preemptive, risk-based gun seizure law that would apply to dangerous-but-not-otherwise-gun-prohibited persons.”)