In the outrage over yet another tragic school shooting, most lawmakers continue to offer the same divisive policy choices: either curtail access to firearms or arm the public with more guns in more places. Meanwhile, Americans are anguished by the deaths, frustrated by a political system in paralysis and yearning to find common ground.
We believe common ground can be found if we start with a goal everyone already seems to agree on. Nearly everyone, including President Donald Trump and the NRA, seems to agree that people at genuine risk of harming themselves or others should not have access to guns. Most also agree that our federal background check system should reliably prevent such people from buying firearms.
Meanwhile, many people who could pass a background check and already own guns still pose a danger to themselves or others at some times in their lives.
This is why support is growing on both sides of the aisle for laws authorizing judges to issue “risk warrants” — also called “gun violence restraining orders” or “extreme risk protective orders” — that temporarily remove firearms from those at risk of harming someone.
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In the shorthand of gun-policy discourse, all sides tend to refer to risky people who should not be able to get their hands on guns as “the mentally ill.” This phrase is highly misleading, however.
Forty million Americans have diagnosable mental health conditions, yet pose no danger to anyone. Surely anyone who respects the Second Amendment does not mean to disqualify all of those people from gun ownership. Such a sweeping ban would be ineffective, unfair and stigmatizing. It would also exclude large numbers of people who are not mentally ill – but who do pose a danger.
Most mass shooters have no histories of treatment for mental illness. However, many of them have exhibited anger, loss of control, preoccupying animosity and other behaviors that have worried their families, teachers, co-workers or neighbors. What we need is a law that allows citizens to bring concerns about a person’s dangerous behaviors to the attention of law enforcement, who could then seek a judicial order temporarily restricting the person’s access to firearms. The law would allow orders to be issued when the evidence shows that a person is suicidal or has behaved in an alarming manner, signaling they are likely to hurt someone else.
Five states — Connecticut, Indiana, California, Washington and Oregon — have enacted laws authorizing such pre-emptive, risk-based, time-limited gun removal orders. These civil orders neither require, nor produce, a criminal record. They simply give police officers clear legal authority to search for and remove firearms from someone when the officer has probable cause to believe that the person poses an imminent risk of injuring someone.
Typically, a judge issues a risk warrant for immediate gun removal in such cases. Then, within two weeks, a court hearing takes place at which the state must show clear and convincing evidence that the person continues to pose a significant public safety risk. If the state meets this burden, it may retain the firearms for up to one year. These procedures fully respect the Second Amendment and the requirements of “due process.”
A recent study evaluating Connecticut’s law analyzed suicide mortality in people subjected to firearm removal between 1999 and 2013. The researchers estimated that for every 10 to 20 risk warrants issued, one life was saved by averting a suicide. Risk-protection order laws can be fairly administered and will save lives.
Recent national polling shows that these types of laws are supported by about two out of three gun owners and three out of four non-gun-owners. And national and state lawmakers increasingly appear ready to sign on to risk-based, time-limited gun removal as a concept.
It is heartening that this approach has finally become part of the national conversation. States are best suited to enact and carry out such laws, using state courts to issue risk warrants and local police to serve them. Congress should create incentives for more states to do so, however. The federal government should also bar people who are subject to risk protection orders from purchasing guns under the national instant background check system.
With about 100 people dying from gunfire in the United States every day, finding common ground on gun policy has become a moral imperative. Risk warrant laws are an important piece in the puzzle of gun violence prevention.
Richard Bonnie is Harrison Foundation Professor of Medicine and Law and director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia; Jeffrey Swanson is a Professor in Psychiatry and Behavioral Sciences at Duke University.