The Washington Post - USA (2022-06-12)

SUNDAY, JUNE 12 , 2022. THE WASHINGTON POST EZ BD B3

they could restrict access to abortion within the

Roe framework by instituting parental notifica-

tion laws; mandatory waiting periods, ultra-

sounds or counseling sessions; and strict li-

censing regulations for clinics. Each effort gen-

erated yet another legal opportunity for the

Supreme Court to revisit Roe.

Partial victories matter because they give

supporters a political focus — something to

work toward — and help them stay engaged.

Gun-control activists need similar commit-

ment and creativity, pursuing incremental re-

forms such as waiting periods, background

checks, and restrictions on particular weap-

ons, ammunition or accessories. They can also

innovate with new initiatives, like requiring

gun owners to carry liability insurance.If a

deeply divided Senate can agree upon very

modest safety measures, like a slightly more

expansive background check for gun purchas-

es or encouragement to states to institute

red-flag laws, it will represent one step in,

rather than an end to, an increasingly conten-

tious political debate.

Successful organizers will navigate the mis-

match between the polemic and possibility that

animate social movements and the slow grind-

ing that characterizes institutional politics.

They need to take their small victories graceful-

ly while continuing to press challenges.

Persistence is critical. Antiabortion activists

continued their efforts, often in the face of

disappointment and defeat. They built organi-

zations that welcomed and trained recruits,

providing the social support needed to stay

engaged and hopeful. Initial support was root-

ed in the Catholic Church, but organizers en-

gaged a broader base in evangelical churches.

Republican politicians encouraged, and ben-

efited from, the movement.

The challenge of persistence is at least as

difficult for the gun-control movement, whose

opponents enjoy strong support from the fire-

arms industry, a network of gun ranges and

dealers, and a powerful, well-funded NRA.

Gun-control activists, by contrast, have been

stuck with a far more volatile landscape. Sup-

port surges in the wake of particularly horrific

tragedies like assassinations and mass shoot-

more expensive; the antiabortion movement

was maintaining a life in the streets as well as in

institutional politics.

Gun-control activists could continue to di-

versify their own tactics and targets, augment-

ing their political efforts with new approaches

such as protests at gun shops or National Rifle

Association conferences, school walkouts, boy-

cotts, and educational programs. Finding ex-

actly the right approach is far less important

than trying a broad menu of strategies in as

many different venues as possible. The messag-

es must also be diverse, appealing to the intel-

lect and to the heart. The faces of the children

killed in Uvalde — or Newtown or Parkland for

that matter — should be powerful reminders of

the consequences of our current policies.

Already, the gun-control movement has

done better than the antiabortion movement at

mobilizing celebrity support to lend imagery to

its message. Actor Matthew McConaughey, a

Uvalde native, took to the podium at the White

House on Tuesday and in front of the cameras

described how some of the murdered children

could be identified only by their clothing, so

destructive was the gun used to kill them. He

displayed a pair of green Converse high-top

sneakers with a heart drawn on the toe of the

right one, explaining that shoes like these

helped 10-year-old Maite Rodriguez’s parents

identify her mangled body. While some activ-

ists have suggested that pictures of the bodies

themselves should be shown to drive home the

true horror of what weapons of war do, describ-

ing such images while offering a powerful

symbol, like the green shoes, can also deepen

the commitment of activists.

Gun-control advocates must claim even par-

tial victories, keeping in mind that they are the

tortoise to the hare. Blocked from overturning

Roe , antiabortion activists took incremental

steps to make abortion more difficult and

expensive and to nurture their own organiza-

tions. First, in 1976, they successfully pressed

congressional allies to deny federal funding for

most abortions through the Hyde Amendment.

Abortion remained accessible for women who

could afford it, but opponents notched a victo-

ry. At the state level, activists tested how much

their beliefs, organize, protest and deny votes

to candidates who won’t deliver. Urgency and

intensity matter. The major movements in our

history — labor, women, civil rights — won

policy reforms before achieving majority sup-

port.

Successful social movements don’t limit

themselves to one narrow set of tactics, either;

they try almost anything to get what they want.

That’s the second lesson the gun-control move-

ment — rebranded now as gun safety — can take

from the antiabortion movement. Many of the

antiabortion activists’ tactics failed — or back-

fired — but activists kept innovating. The Com-

mittee for Pro-Life Affairs of the National Con-

ference of Catholic Bishops issued a harsh cri-

tique of Roe and called for taking strong action

to overturn the decision, endorsing passage of a

Human Life Amendment to the Constitution.

Sympathetic legislators in Congress introduced

versions of such an amendment over the decade

following Roe and made little progress. About

the same time, Nellie Gray, a lawyer and convert

to Catholicism, began organizing what would

become an annual protest in Washington to

commemorate Roe. This March for Life can turn

out hundreds of thousands of people, in addi-

tion to counterprotesters, each January.

Gray gave up her legal practice and became a

full-time organizer. Other antiabortion funda-

mentalists ran for office, staging campaigns in

both major parties. Still others launched a

Right to Life Party. By the end of the 1970s,

ambitious Republicans, including Ronald Rea-

gan, found that they could activate strong

partisan support by soliciting labor and money

from abortion rights opponents. When Reagan

won the party’s nomination for the presidency

in 1980, abortion became a key wedge issue for

the GOP in prying loose Catholic voters from

the Democratic Party. Republicans with na-

tional ambitions got the message. Reagan’s

running mate, George H.W. Bush, came out

against abortion rights to launch his own presi-

dential bid in 1988, even though he and his

family had previously been strong supporters

of Planned Parenthood. Donald Trump also

favored abortion rights, until he decided to run

for the Republican nomination.

When Reagan didn’t do much to end abor-

tion, impatient activists found ways to escalate,

bombing clinics and threatening — and some-

times killing — doctors and clinic staff. Even

when most antiabortion leaders decried vio-

lence, terror raised the costs and difficulties of

operating reproductive health clinics.

Antiabortion activists found other ways to

target clinics without bombs or guns. Entrepre-

neurial activists published manuals with direc-

tions for sabotaging clinics — clogging toilets

or jamming door locks, for example. Randall

Terry founded Operation Rescue to deploy

larger numbers to shut down clinics with their

bodies, not guns. Operation Rescue staged

large civil-disobedience actions and sustained

campaigns in several cities, generating nation-

al headlines and keeping the issue alive.

Other tactics required much smaller num-

bers. A few activists could stage sidewalk coun-

seling sessions outside clinics, which generally

entailed yelling at women who were about to

enter and trying to get them to change their

minds. The protesters often displayed graphic

pictures of fetal remains, intended to disturb.

Nor did it take many people to staff “crisis

pregnancy centers,” which offered ultrasounds

and antiabortion counseling.

There’s no evidence that the protests or the

pictures changed the minds of any women who

wanted abortions, but they presented hurdles

that made operating the clinics harder and

GUNS FROM B1

How t he gun-control

movement can succeed

ings, then often fades when results are slow in

coming.

But tragedy forges activists and leaders.

Carolyn McCarthy entered politics in 1996

after her husband and son were shot by a

crazed gunman on the Long Island Rail Road.

McCarthy served nine terms in the House of

Representatives, pressing for action on gun

safety, mostly unsuccessfully. Lucy McBath be-

came a gun-control activist after her son was

shot at a gas station when someone thought the

boy was playing music too loudly. First elected

to the House in 2018, McBath has introduced

several gun measures that passed the House

and stalled in the Senate.

The challenge is maintaining both an insti-

tutional infrastructure and a sense of urgency

over the long haul it takes to make change. Alas,

the tragic pace of mass shootings underscores

and reinforces the need for action. In addition,

some committed longer-term funding, and

imaginative organizing from groups like Moms

Demand Action and March for Our Lives, can

help.

The antiabortion movement offers a tem-

plate, but also a caution. Victories aren’t final.

Reversing Roe would be a milestone for the

movement, but it’s not the end. Activists are

planning the next steps in their campaign to

end abortion, fighting battles on state laws and

hoping for more help from the Supreme Court,

and they will have to defend their wins against

a newly antagonized movement for reproduc-

tive rights. For the first time in 50 years,

reproductive rights activists are at least as

energized and engaged as their counterparts.

Gun-control advocates need to dig in for

what will be a long political struggle, one that is

likely to be peppered with horrific events like

the most recent mass shooting. It’s hard to

change policy, but this movement is better

positioned than the antiabortion movement

ever was.

Twitter: @davidsmeyer1

David S. Meyer is a professor of sociology and

political science at the University of California at

Irvine. His most recent book is “How Social

Movements (Sometimes) Matter.”

SUSAN WALSH/ASSOCIATED PRESS

C amila Alves

McConaughey holds

a pair of green

Converse shoes

similar to those

worn by Uvalde,

Tex., shooting

victim Maite

Rodriguez, 10, as

her husband, actor

and Uvalde native

Matthew

McConaughey,

speaks about gun

regulation at the

White House on

Tuesday.

the U.S. Court of Appeals for the 7th Circuit.

Courts reviewing extreme-risk laws have up-

held them on that very basis. In 2016, for

example, a Connecticut appellate court relied

on U.S. Supreme Court precedent in holding

that the state’s statute “does not implicate the

second amendment, as it does not restrict the

right of law-abiding, responsible citizens to

use arms in defense of their homes.”

The crux of the political debate has there-

fore focused on due process — although

due-process challenges to red-flag laws have

fared no better. Nor should they have. A prime

complaint about red-flag laws is that they

allow an order to be issued before the gun

owner has an opportunity to contest the

evidence, but the Supreme Court has long

recognized that there are “extraordinary situ-

ations where some valid governmental inter-

est is at stake that justifies postponing the

hearing until after the event,” as Justice John

Marshall Harlan II wrote in a 1971 case.

Examples include restraining orders filed by

one domestic partner against another, civil

commitments for mental illness and the

temporary removal of children from parental

that the gun owner indeed presents a risk)

varies from “probable cause” to “clear and

convincing” evidence. If the petition is suc-

cessful, the court can enter a short-term

emergency ERPO, usually lasting two weeks

or less. In many cases, that’s all that is needed

— the crisis can be averted. A longer-term

ERPO can be entered only after a full hearing

at which the petitioner again bears the

burden of proof, usually at a higher threshold,

and at which the gun owner can contest the

order.

If there is a constitutional flaw in this basic

structure, it has apparently escaped notice of

the entire United States judiciary: Courts

have rejected Second Amendment and due-

process challenges to ERPO laws, and for good

reason.

Perhaps surprisingly, the Second Amend-

ment has not been the focus of most constitu-

tional complaints. That’s because even ardent

Second Amendment defenders like Justice

Amy Coney Barrett recognize that “legisla-

tures have the power to prohibit dangerous

people from possessing guns” — as Barrett

wrote in a 2019 case, when she was a judge on

custody in emergency situations (for instance,

when there are credible allegations of abuse).

In cases like these, delaying urgent action

until after a full hearing can lead to cata-

strophic outcomes.

Given that the Constitution allows emer-

gency action to temporarily remove a person’s

child before a full hearing, it’s hard to argue

that it prohibits emergency action to tempo-

rarily remove a person’s guns. Quite simply,

the Constitution does not require society to

wait until the trigger is pulled.

Though they vary in their particulars,

extreme-risk laws contain several important

procedural safeguards that, as the Supreme

Court has recognized, help to forestall abuse

and ensure due process. They impose the

burden on the petitioner to convince an

independent third party; they guarantee ac-

tive judicial oversight and provide a prompt

hearing focusing on the degree of risk; and

many states impose criminal penalties for

filing false or harassing extreme-risk petitions

(in addition to existing punishments for

perjury).

Understanding constitutional require-

ments is important not only for lawyers and

judges, but also for those debating gun

regulation. Time and again, arguments based

on misunderstandings of the Constitution

have been used to derail reasonable gun

regulation. After Sandy Hook, for example, an

overwhelming majority of Americans wanted

to expand background checks for gun sales.

Among the minority opposed — some strongly

so — the most common reason was that doing

so would violate the Second Amendment; yet

that position has no support in legal doctrine.

We should not once again make the mistake

of blaming the Constitution for inaction on

gun laws. The structure of extreme-risk laws is

entirely consistent with not only the Second

Amendment but also the constitutional guar-

antee of due process.

R

ed-flag laws, which allow guns to be

temporarily taken from people who

pose a risk of harm to themselves or

others, are one of the few gun-control regula-

tions that have bipartisan support. “I’m gener-

ally inclined to think some kind of red-flag law

is a good idea,” Sen. Roy Blunt (R-Mo.) said

shortly after the May 24 school shooting in

Uvalde, Tex. Key senators have told reporters

that an agreement could be reached soon on

legislation that would include incentives for

more states to pass such laws.

There is strong popular support for red-flag

laws — also known as extreme-risk laws — in

both parties, and more than a dozen states

have adopted them in the past few years

(bringing the total to 19 plus the District of

Columbia). Social science research suggests

that they work, most strikingly in preventing

gun suicides.

So what prevents their wider adoption,

including at the federal level? Some gun rights

advocates and their allies in Congress say they

violate the due-process clauses of the Fifth

and 14th Amendments. “Depriving citizens of

Life, Liberty, or Property, without Due Proc-

ess, is a clear violation of our Constitution,”

Rep. Thomas Massie (R-Ky.) tweeted on May

27. “Every member of Congress swears an oath
    to ‘support and defend’ the Constitution.
    Voting for, or introducing, Red Flag Laws is a
    blatant violation of that oath.”
    But such criticisms are off base. Politicians
    considering red-flag laws, whether in Con-
    gress or state legislatures, should do so based
    on an accurate understanding of what the
    Constitution requires. It indeed guarantees
    “due process of law” whenever the govern-
    ment seeks to deprive a person of “life, liberty,
    or property.” But the basic design of extreme-
    risk laws is fully consistent with constitution-
    al commands, as we showed in a recent law
    review article.
    Here’s how red-flag laws work: A limited set
    of people — law enforcement officers, family
    or household members, and sometimes oth-
    ers — can petition a judge to issue an
    “extreme-risk protection order” (ERPO) re-
    quiring a person to temporarily surrender his
    or her firearms and refrain from acquiring
    new ones. Depending on the state, the burden
    of proof the petitioner must meet (to establish

No, red-flag gun laws don’t violate due-process rights

Courts have

repeatedly

rejected

challenges to

these measures,

note legal

scholars Joseph

Blocher and

J ake Charles

JUSTIN LANE/EPA-EFE/SHUTTERSTOCK

New York Gov.

Kathy Hochul (D),

joined by officials

including Buffalo

Mayor Byron

Brown, right,

displays gun

legislation during a

signing ceremony at

a community center

in the Bronx last

week. T he new

measures include a

broadening of the

state’s red-flag law,

which allows courts

to seize the guns of

anyone deemed to

be a danger to

themselves or

others.

Joseph Blocher is the Lanty L. Smith ’67 professor

of law and a co-director of the Center for Firearms

Law at Duke Law School. Jake Charles is the

executive director of the Center for Firearms Law at

Duke Law School. As of fall 2022, he will be an

associate professor of law at Pepperdine University

Caruso School of Law.