Texas Bill Could Stop Mentally Unstable People From Having Guns Taken Away

A bill in the Texas State Senate would prevent law enforcement from implementing policies to take away guns from mentally unstable people.

Senate Bill 1362, known as the Anti-Red Flag Act, has been given initial approval by the Republican majority in the Texas Senate.

The bill would prevent the possibility of introducing Red Flag laws into the state, meaning law enforcement, courts and local government could never bar access to firearms for people deemed a risk to themselves or others.

Why It Matters

Red Flag laws have been linked to a reduction in gun-related homicides and suicides in states where they are implemented.

Following the mass shooting at Robb Elementary School in Uvalde in 2022, the majority of Texans said they support red flag laws and support stricter gun safety legislation, but the state has never formerly introduced them.

What To Know

The Anti-Red Flag Act, introduced by state Senator Bryan Hughes, would end any ability for law enforcement, courts or local governments to remove firearms from people who have been singled out as threats to themselves or others without a criminal charge.

Under the bill, Texas law enforcement entities also cannot comply with out-of-state orders from authorities when it comes to removing guns from someone who is deemed dangerous.

Proponents of the bill say that Red Flag laws, otherwise known as Extreme Risk Protective Orders (ERPOs), violate people's right to due process, as people targeted by Red Flag laws have to give up their guns without a criminal charge.

However, Nicole Gollis Golden, executive director of Texas Gun Sense, told Newsweek: "It is misinformation to claim that extreme risk protection orders violate due process. ERPOs from other states are specifically drafted with preservation of due process and have not been found unconstitutional on those grounds.

"Michigan's law, for example, establishes criminal penalties for petitioners who knowingly and intentionally make a false statement to the court; no petitioner has been charged with this offense."

This was seconded by Kelly Sampson, Senior Policy Counsel for Strategic Engagement at Brady United.

"All of the [Red Flag] laws require notice which is one aspect of due process and the opportunity for a hearing," Sampson explained to Newsweek. "There is no circumstance in which a person that's the subject of an ERPO petition doesn't know that they are or have the opportunity to be heard in court."

"There are also standards for a petition. You can't just come in and say 'I want to file for an ERPO against Tom because I don't like his vibe.' You have to have a real basis for arguing that Tom is a risk to himself or others and that's heard before a judge."

Golden also refutes the idea that Red Flag laws violate the Second Amendment, saying: "It's important to note that as far as we're aware, the courts have not found that ERPOs violate the right to bear arms or the right to free speech—the only case that did was reversed [R.M. v. C.M.]. Further, the Supreme Court said last summer that it does not violate the Second Amendment to deprive someone of firearms if they pose a credible threat to others."

Sampson agrees. She explained that ERPOs do not permanently seperate someone from their guns. They are a temporary removal due to proven mental health issues, so Red Flag laws cannot be accused of preventing someone from ever having the right to bear arms. And, they are "grounded in specific finding of dangerousness."

Sampson also stressed that while Red Flag laws are often brought up when it comes to homicide, they are also a very useful tool for suicide prevention.

In 2018, after a mass shooting in Sutherland Springs left 26 people dead, Governor Greg Abbott said he would consider implementing Red Flag laws, but they never reached the state's House or Senate.

Texas has had three of the five-worst mass shootings in America since 2015, However, the bill in the state Senate is the latest of a series passed that roll back existing or potential gun protections.

The Texas Legislature has also recently forced colleges to allow guns on campus, required an armed presence in K-12 schools, and removed requirements for a permit to carry a concealed handgun in public.

The bill has received support from Kyle Rittenhouse, who shot three (two fatally) at a Black Lives Matter protest in Wisconsin in 2020. He spoke in favor of the bill to the Senate State Affairs committee: "I know first-hand the importance of self-defense and the weight that comes with exercising that right, but I also know how quickly false accusations and misinformation can be weaponized to destroy a person's life."

However, the bill received a harsh rebuttal from Democratic state Senator Roland Gutierrez, the state senator for Uvalde, where, in 2022, 19 children and two teachers were killed in the mass shooting at Robb Elementary School.

According to KEYE-TV in Austin, Gutierrez asked Hughes: "[The Uvalde shooter] was called the school shooter prior to him killing all those kids and those two teachers. Are you aware of that, that he was called a school shooter?"

"No, I was not," Hughes replied.

Hughes' bill will hinder law enforcement's ability to take a gun out of the hands of someone nicknamed "school shooter" before they have the chance to actually become one.

After Florida introduced Red Flag laws in 2018, gun-related homicides fell by 11 percent between 2019 and 2021. And, after Connecticut started to fully enforce its Red Flag laws in 2007, gun-related suicides fell by 13.7 percent.

A recent survey from the University of Houston's Hobby School of Public Affairs found that 88 percent of Texans support Red Flag laws. Additionally, 69 percent of Texas gun owners said they support criminal and mental health background checks for people purchasing guns.

Golden told Newsweek: "This law is simply out of step."

What People Are Saying

State Senator Roland Gutierrez: "[The Uvalde shooter] told people what he was going to do and yet there's no law in this state, the kind of law that you're trying to curb that would have allowed that thing, that horrible event to be stopped, and yet here you are trying to pass a piece of legislation that says, not only is there no law, but we should never have one ever."

Nicole Gollis Golden, executive director of Texas Gun Sense, told Newsweek: "Texans support ERPOs, and we have experienced tragedies that could have been avoided had this law been in place. In fact, last year, a woman known to be a danger to herself and others perpetrated a shooting at Lakewood Church in Houston and two people were wounded, including her young child. An ERPO may have also prevented the 2019 mass shooting in El Paso. ERPOs are a proven measure for preventing homicides and suicides, and Texans deserve this safety measure."

Kelly Sampson, Brady United, told Newsweek: "ERPOs have been increasingly something that states have passed and they work. They really do help address a big problem which is that when you have a firearm and you're going through a crisis you may use that firearm in ways that you would never ever imagine using it when you're in a better time. They are a temporary way to get people the space they need to get help and get through the crisis and then come back."

What Happens Next

The bill needs one more vote in the Texas state Senate before being sent to the Texas state House.

Hughes has said SB 1362 does not apply in cases involving criminal charges or domestic violence orders.

Update 03/2825 12:44 am ET: This story was updated to include comment from Kelly Sampson, Senior Policy Counsel for Strategic Engagement at Brady United.