The problem(s) with Steve Scalise’s case against ‘red flag’ laws

 House Minority Whip Steve Scalise made a predictable case against new gun laws on Fox News yesterday morning, but the Louisiana Republican added a little something extra to his usual talking points.

The far-right congressman — who’d become the House majority leader in a Republican-led chamber — noted that some instances of gun violence have been prevented by those close to would-be shooters reporting them before people got hurt. "We need to be focused more on stopping things before they happen,” Scalise argued.

At face value, that’s a sentiment that may seem relatively easy to endorse. In fact, preventing mass shootings seems like the sort of goal that should generate near-universal support. The tricky part, of course, is figuring how to do that.

We could stop mass shootings “before they happen” by limiting access to deadly weapons, but Scalise and his cohorts are against that. We could also stop mass shootings “before they happen” by making use of time machines and the precogs from Minority Report, but they’re fictional.

But there are also “red flag” laws to consider. The idea is relatively straight forward: Unstable people deemed to be a danger to themselves or their communities have their guns taken away before anyone gets hurt. If Scalise is serious about looking for policies that can prevent mass shootings, this would appear to be a potential area for progress.

The trouble, of course, is that the Louisiana Republican, after saying he wants policymakers to focus more on stopping shootings before they happen, suggested he can’t support “red flag” laws, either. The Hill reported:

House Minority Whip Steve Scalise (R-La.) on Sunday said he does not support legislation on red flag laws, calling them “unconstitutional” and a non-solution to a broader debate on how to curb gun violence. Scalise told “Fox News Sunday” host John Roberts that red flag laws, implemented in 19 states across the U.S., are unconstitutional because authorities violate a Second Amendment right to bear arms when they seize firearms from an individual a court deems is a threat.

“They literally come into your house and take away your gun without you even knowing that there was some kind of proceeding where somebody said, ‘Oh, I think that gun might be a threat,’” the GOP congressman said. “Maybe somebody thought taking away a gun from a 19-year-old is going to solve a problem. It happens to be unconstitutional.”

When the Fox host reminded Scalise that such a law might’ve prevented the recent mass shooting at a Buffalo grocery store, the Louisiana Republican responded, “Well, again, due process is a constitutional right.”

This is not a good argument, and it’s worth understanding why.

First, the idea that such protections “happen to be unconstitutional” is, if we’re being generous, a stretch. The Supreme Court hasn’t issued any rulings endorsing such an argument, and there’s no reason to assume the judiciary would agree with Scalise’s pitch.