Off The Bench: The Pending Gun Legislation by Steve Rideout 

Last week I wrote a piece on legislation and how the community can help inform one another about what is happening in your city or county council. This week I am following up on a related but broader topic, which is the gun safety, mental health, and red flag proposal being considered in Congress.

While understanding that it will not be a final and totally satisfactory solution, we also need to understand that it can and will create complexities within states and between states that will have to be considered if they have not already been identified and solved by existing state laws and practice. We can see one complexity already with the Senate in how to define “boyfriend”. When states were trying to address domestic violence issues and who they would apply to and what court they would be heard in, the Virginia legislature and Attorney General had their challenges with defining who it would apply to and under what circumstances, so the challenge that the Senate has with that particular issue is not unexpected.

As I read the general proposals of the federal legislation, some of it will impact the entire country. Some of it will provide funding for mental health resources within the states that the states will then have to decide where that funding will go – large communities or cities where there are multiple shootings or rural communities that have multiple needs because of minimal existing resources – and how much will go where. Some of it will allow for review of juvenile court records but retrieving them could be a significant challenge if the 18–21-year old’s have lived in multiple states and multiple jurisdictions within different states. 

Another challenge could be in those jurisdictions that border neighboring states where the two states have different requirements for the purchase of weapons. I am not saying that these challenges are not solvable or exist everywhere, but where they do exist the solutions will take time to work out and they will certainly not be uniform.

Another challenge that I see is changing how the country views mental health. With this new legislation, will people be more or less willing to admit that they need help? What mental health issues will rise to a level of needing to be reported for the purposes of deciding if a person should have access to a gun? Will the mental health professionals treating individuals that obtain a weapon be subject to more lawsuits for an alleged misdiagnosis or a failure to diagnose a problem that is claimed to be the cause for a lawsuit by the victim or family of a victim of gun violence? These are the kinds of collateral consequences that are often not fully thought out. With the rush to put this legislation in place, all of the possibilities will not be thought through so additional federal or state legislation might be required. I can just hear the objections of those who oppose reasonable gun safety legislation that claim that any modification of what is being done now is simply new and greater interference with 2nd Amendment rights. So, while it is important to get something done, Congress needs to be sure that they are clear about what they intend to include so that the Supreme Court will not have to interfere with the implementation of whatever is developed.

If the courts are to be the arbiters of the red flag laws or the domestic partners buying guns for persons convicted of domestic violence, different states may have different courts hearing those case types. Would the juvenile and family court hear some and the district court hear others? To the point that I raised last week, will there be more cases filed in these courts as a result of these proposed laws, and are some of these court’s dockets so filled with cases already that they will need additional judicial resources to manage the caseload? What criteria will state legislatures use to determine if a county or city needs more judges? Will these cases be entitled to being heard more quickly by the court than others thus causing delay in other important matters under the jurisdiction of the court?

I would submit that these and other issues need to be taken into consideration as part of this process and that the members of Congress need to be talking with their state court leaders, their state legislative leaders, and their state mental health professionals to fully understand the impact or potential impact of the proposed federal legislation on and within states.

Thanks for reading. Please be in touch.

Judge Rideout is the former Chief Judge of the Alexandria, VA Juvenile and Domestic Relations District Court (1989-2004). From 2004 until the present he has consulted in different states to support their efforts to improve their child welfare systems. From 2016 to early 2021, he was the Ward 1 Commissioner on the Cambridge City Council. Throughout his career, he has been an advocate for improving the lives of children in his and other communities. He can be reached at [email protected]