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The two paths Congress could take on gun control

Lawmakers are weighing red flag laws and background checks in the search for a compromise.

A politician gestures from behind a lectern that reads “Everytown for gun safety” and “Moms demand action for gun sense in America.” The Capitol dome is in the background.
Sen. Chris Murphy (D-CT) addresses a rally with fellow Democrats and gun control advocacy groups outside the Capitol on May 26, in Washington, DC. 
Chip Somodevilla/Getty Images

In the wake of the Uvalde, Texas, school shooting, Congress is once again at a crossroads on gun control, an issue lawmakers have failed to act on for more than a decade.

“I’m hopeful there is growing momentum. But I have failed plenty of times before,” Sen. Chris Murphy (D-CT), a leading gun control advocate, told reporters on Thursday.

For now, Murphy is heading a 10-day effort to see if he can find bipartisan compromise on the issue. Any agreement is likely to center on “red flag laws” or universal background checks — two policies Republicans have expressed a willingness to consider. Although a few Republicans have been actively involved in the 10 day push, it remains to be seen if either policy can garner the GOP support it needs to become law.

If this effort falls short, the Senate plans to vote on two House-passed bills focused on strengthening background checks in order to get lawmakers on the record on the issue ahead of the midterms. House Democrats, too, intend to vote on an additional package of gun control bills — including a measure to raise the age limit for purchasing semi-automatic rifles — as soon as next week, though these are unlikely to make it through the Senate.

Despite an increase in mass shootings in recent years, gun control legislation has long been stalled in Congress due to Republicans’ unwillingness to support policies at the federal level. Whether that changes will become more apparent in the next two weeks.

Here’s what could happen.

Path one: Congress finds a bipartisan deal — and 10 Republican senators willing to support it

The biggest obstacle in Congress is a lack of Republican support in the Senate. Because of the filibuster, most bills need 60 votes to pass, which would require 10 Republicans to join the 50-person Democratic caucus to approve any gun control legislation.

Thus far, Democrats have been united on the subject. Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), both centrist lawmakers who’ve defected from the caucus on other issues, have expressed support for gun control discussions. However, neither has indicated a willingness to eliminate the filibuster, which would enable Democrats to pass legislation with the members they have.

Bipartisan talks are ongoing this week, with Sens. John Cornyn (R-TX) and Murphy set to meet for a zoom conversation on Tuesday. According to Murphy, there are a slate of provisions that are on the table including two main areas where Republicans have signaled openness:

Red flag laws: Sen. Susan Collins (R-ME) is among the Republicans who have said they’re willing to discuss a red flag law, similar to the yellow flag law in her home state of Maine. These policies enable law enforcement to confiscate firearms if someone is considered a threat to themselves or others, and have previously been discussed in Congress following 2019 shootings in El Paso, Texas, and Dayton, Ohio.

That year, Sens. Richard Blumenthal (D-CT) and Lindsey Graham (R-SC) negotiated a bill that would offer grant money to states to incentivize them to establish red flag laws, but it wasn’t able to get enough Republican support. On Thursday, Blumenthal said they’re revisiting a version of this bill.

These laws — which have already been established in 19 states — enable family members or law enforcement to petition the courts about the threat an individual poses. According to the advocacy group Everytown for Gun Safety, more than 8,000 petitions were filed across the country in 2020 and 2021.

The effectiveness of the law, however, depends heavily on implementation. As Vox’s Nicole Narea explained, a New York red flag law failed to stop the shooter in the recent Buffalo mass shooting that killed 10 Black Americans, because police chose not to pursue a petition even though he had been flagged for a psychiatric evaluation after threatening murder-suicide.

Universal background checks: Sen. Pat Toomey (R-PA), meanwhile, suggested that universal background checks could be an area to focus on since it has previously gotten Republican support. In 2013, Toomey and Sen. Joe Manchin (D-WV) reached a bipartisan agreement that garnered the support of four Republicans including Collins and then-Sens. Mark Kirk and John McCain. That bill, however, wasn’t able to get 60 votes and ultimately failed in the Senate.

In poll after poll, universal background checks have been extremely popular. And while they wouldn’t address all the causes of gun violence, they would add a safeguard when it comes to gun access. Experts note that background checks are also central to other gun control proposals, like requiring each firearm owner to have a gun license.

“Red flag laws are on the table, background checks expansion are on the table, as well as things like safe storage of guns,” Murphy said in a CBS News interview on Sunday.

A handful of Republicans have indicated interest in working on this effort, though it’s not yet clear whether 10 GOP lawmakers would sign on.

In addition to Collins and Toomey, Sens. Bill Cassidy (R-LA) and Linsey Graham (R-SC) participated in a bipartisan meeting on gun control last week. Several other Republicans such as Sens. Rob Portman (OH), Thom Tillis (NC), and Mitt Romney (UT) have also said they’d consider legislation while many have reiterated that any new policies should be left up to the states.

Senate Minority Leader Mitch McConnell, a longtime opponent of gun control measures, noted that he backs Cornyn’s participation in these talks. “What I’ve asked Senator Cornyn to do is to meet with the Democrats who are interested in getting a bipartisan solution and come up with a proposal, if possible, that’s crafted to meet this particular problem,” he told CNN on Thursday.

Murphy has said that he’s “seen more Republican interest in coming to the table and talking this time than at any other moment since Sandy Hook.”

Path Two: Democrats take a symbolic vote

History tells us it’s more likely that Congress isn’t going to be able to reach a deal, given how entrenched opposition to gun control has been.

Republicans just last week blocked the Domestic Terrorism Prevention Act — a bill Senate Majority Leader Chuck Schumer had framed as a vehicle for gun control efforts — from advancing. The bill, which was raised in response to the mass shooting in Buffalo, would have established new units at the Homeland Security Department, the Justice Department, and the FBI that focused on domestic terrorism.

Schumer had said that lawmakers could debate policy additions to the bill if the procedural vote this week were to pass. In the end, however, 47 senators voted in favor of the bill, while 47 voted against it. Republicans opposed the bill because they didn’t see the need for new federal bodies focused on domestic terrorism, and expressed concerns that it could lead to disproportionate scrutiny of organizations on the right.

If bipartisan talks collapse, Senate Democrats intend to hold votes on two other bills they know won’t pass, to show where lawmakers in both parties stand. As with recent votes on abortion rights, Democrats hope these votes could be used against Republicans in the midterm elections.

Those bills would be:

  • Bipartisan Background Checks Act: This bill would require background checks for all gun sales and close existing loopholes for gun shows and online sales.
  • Enhanced Background Checks Act: This measure would address what’s known as the Charleston loophole, which enables an individual to buy a firearm without a completed background check if three days have elapsed. It would extend the window to 10 days, and directly address how the shooter who killed nine Black Americans in Charleston, South Carolina, in 2015 was able to purchase a gun.

Both measures advanced with a handful of Republican votes in the House and are widely expected to fail in the Senate. But Democrats think they’d provide fresh fodder to capitalize on public anger, something they hope they could channel into midterm campaigns that thus far don’t look promising. “One way or the other, we’re going to have a debate here. We’re going to force [legislators] to tell America which side they’re on,” Murphy said.