A bipartisan group of twenty U.S. Senators have a broad agreement on legislation in response to mass shootings in America. Opposition from the left and right still exists, and a legislative recess looms, but Congress seems poised to pass the most significant reforms in this area since the Clinton Administration.

The framework is still just a framework. Details need to be finalized, so the situation is fluid. The group’s willingness to go public, and Senate Minority Leader Mitch McConnell’s (R-KY) support, suggest the parameters are firm. The agreement includes:

• Financial incentives for states to pass “red flag” laws
• Increased funding for mental health
• Increased funding for school security
• Expanded background checks for buyers under 21
• Closure of the “boyfriend loophole”

Progressives, and some gun control advocates, are disappointed because the framework does not limit the purchase of rifles for those under 21* and it does not target particular weapons or high capacity magazines. Conservatives are wary of red flag laws, mostly out of due process concerns, or because they fancy themselves as Second Amendment absolutists.**

Red Flag laws are increasingly popular. Nineteen states (plus DC) have some provision*** that allows law enforcement officers, family members, or school officials to identify an individual and petition a court for an order that seizes their weapons, and prevents them from purchasing weapons until the order expires. The standard for determining who is subject to such orders is obviously critical. Typically, those who exhibit behavior that reveals them to be a danger to themselves or others, such as suicidal ideation or violent fantasies, could qualify.

Due process concerns surrounding red flag laws are valid, but could overstated. A well-crafted law must define “danger” carefully to limit properly a judge’s discretion. Vermont, for example, requires the petitioner to provide “specific facts” that show “imminent and extreme risk.” The burden of proof should rest on the person bringing the petition, and those subject to court orders should be able to appeal. Provisions that provide legal counsel to defendants, and that include penalties for false petitions would also help.

This is more complicated because the Court has not done much to define precisely what the Second Amendment secures. We know, via Heller and McDonald, that it protects the right to possession of a firearm within the home for the purposes of self-defense. With this understanding, any red flag law that functions as a de facto ban, or one that is so imprecise that it empowers local judges to prevent broad, identifiable groups from possessing a firearm, would likely be in violation of not just the Fourteenth Amendment’s Due Process Clause, but also the Second Amendment as applied through the clause.

*Seven states (CA, FL, HI, IL, NY, VT, WA) currently restrict rifle purchasing to those 21 or older. Federal law already prevents handgun purchases by those under 21.

**The U.S. Supreme Court has never treated any provision of the Bill of Rights as absolutely protected. People who say otherwise are either ill-informed or pandering to the ill-informed or, in far too many cases, both.

***They go by various names, including “extreme risk protection orders,” “gun violence restraining orders,” and “severe threat orders of protection.”