After a Landmark Federal Law, What’s Next for Gun Safety in the States

There is so much to celebrate in the wake of Congress’ historic passage of the Bipartisan Safer Communities Act (BSCA), the first major federal gun safety law of the century and a historic gun safety, mental health, and school safety bill. As the law begins to take effect, there is urgent action state and local leaders can take immediately to help fulfill the BSCA’s promise to save lives – and to build new policy inspired by its critical gun safety objectives.

State and local leaders should consider the following steps:

Supporting State Extreme Risk (or “Red Flag”) Laws

• State executives should apply for the $750 million in new funding to support Extreme Risk laws.
• States that receive grant funding should use it to fully implement their laws, including by launching a state coordinator, public awareness campaign, and mandatory training program for relevant government agencies.
• States without Extreme Risk laws should pass those laws now.

Enhancing Background Checks for Gun Buyers Under 21

• State agencies should prepare to respond to new background checks for young people.
• States should raise the minimum age for gun purchase to 21.

Funding Community Violence Intervention Programs

• Local governments and community-based organizations should apply for the new $250 million in competitive grant funding.
• State and local policymakers should keep building the case for the impact of these programs.

Disarming Domestic Abusers and the Dating Partner Loophole

• Governors should work with courts to get domestic abuse records into the background check system.
• Legislators should pass their own strong state laws barring gun possession by abusers.
• States should build out existing relinquishment programs, or pass new ones, to ensure illegal guns are immediately removed from domestic abusers who are barred from owning guns.

Strengthening the Background Check System

• Governors should tap new federal money to help submit background check records.
• State officials should work with federal officials to identify high-volume gun sellers who need dealer licenses, and work to increase oversight and requirements for gun dealers.

Cracking Down on Gun Trafficking

• State agencies should take advantage of new federal crimes to bring traffickers to justice and should use this moment to build their own data intelligence tools to identify illegal guns.

Funding School Safety Resources

• State agencies should use the new $300 million in grant funding for education about secure gun storage, threat assessment programs, and school security and emergency planning.
• Lawmakers should pass or strengthen secure gun storage requirements.

Supporting State Extreme Risk (or “Red Flag”) Laws

The BSCA provides $750 million in funding over the next 5 years to support crisis intervention services, including the implementation of state Extreme Risk (or “Red Flag”) laws — with the first allocations being made available to states this year. In addition, any funding a state or local government receives annually through the Byrne JAG grant program can now be used to support the implementation of Extreme Risk laws.

In states with existing Extreme Risk laws, state executives and agencies should apply for and utilize the newly available funds to increase uptake and strengthen implementation of Extreme Risk laws:

• Governors in the states with Extreme Risk laws should apply for their respective allocation of the JAG Crisis Intervention Funding as soon as a federal solicitation is posted (likely in August 2022). The BSCA allocates these funds according to a formula (see expected allocations in the appendix to this fact sheet), and executives and lawmakers can consider supplementing that funding with new state dollars. Governors should consider using these funds to build out their Extreme Risk programs in the following ways:
  • Coordinating the work statewide, either with a new Extreme Risk implementation coordinator or via a state Office of Violence Intervention (OVI). State officials should work with stakeholders across the state, with the federal Bureau of Justice Assistance on technical assistance, and with partners in other Extreme Risk states to optimize uptake of Extreme Risk orders, develop best practices, and ensure the law is implemented appropriately and equitably across the state.
  • Launching a statewide public awareness campaign about what behavior suggests a person may harm themselves or others – and how people who identify warning signs can use Extreme Risk laws to remove guns from those dangerous situations. This may include TV and radio ads, web resources, schools and doctors distributing handouts to parents and patients, and tapping other culturally-appropriate messengers, and should have multilingual resources. 
  • Establishing a statewide task force to educate state agencies –from police and departments of education to behavioral health officials – responsible for: 
    • developing training materials and technical assistance for law enforcement and court staff on the mechanics of Extreme Risk Protection Orders and providing technical assistance as needed. 
    • identifying circumstances where law enforcement should be required to file Extreme Risk petitions – i.e., when law enforcement believes that a person poses an imminent threat. 
    • building tools to help people in crisis access substance use and behavioral health resources.
    • focusing on domestic terrorism and armed extremism, in coordination with federal officials, with a new protocol for investigating ties to white supremacist and other extremist groups, including on social media.
  • Conducting research and evaluation of Extreme risk laws to enable the state to establish best practices and recommend changes to the existing law through keeping detailed data on how the Extreme Risk law is used, analyzing its impact in collaboration with public health researchers, measuring the law’s use and effectiveness, and analyzing racial impacts.¹States should publish an annual report that includes detailed data on the trajectory of all extreme risk petitions – including e.g., how many are heard but not granted, how many are deemed to be fraudulent – broken down by race and ethnicity of the petitioner and respondent.
  • Working with behavioral and mental health service providers related to the safe and equitable application of the law.

In states without an existing Extreme Risk process, legislatures should put those laws into place. The states without Extreme Risk laws should act now to pass these life-saving laws. The BSCA passed with the support of 15 Republican Senators and 14 Republican House members, including party leaders with A+ ratings from the NRA like Senators Mitch McConnell and John Cornyn. This breakthrough should propel state legislators from every political background to support this policy, now proven to have strong bipartisan support. Generous federal funding, allocated pursuant to a formula which includes amounts such as $64 million in Sen. Cornyn’s home state of Texas, makes new legislation that much more appealing – as new Extreme Risk states can act quickly to educate the public, put in place dedicated resources to screen for red flags, and otherwise immediately increase uptake of the policy.

Enhancing Background Checks for Gun Buyers Under 21

The BSCA establishes an enhanced background check process and investigative period for buyers under age 21. Before any of these sales may proceed, federal background check operators will be required to contact state criminal history repository or juvenile justice systems, along with custodians of mental health adjudications and local law enforcement, to search for disqualifying records not already in the federal databases. 

Governors should immediately prepare the relevant state agencies to respond to the these new federal background check inquiries for young people by:

• Identifying the appropriate criminal history, juvenile justice, and mental health contacts for federal background check operators, and providing written guidance to each contact describing which types of juvenile records are prohibiting under federal and/or state law. 
  • While the new federal law does not require any new categories of juvenile records be submitted into the National Instant Criminal Background Check System (NICS), the guidance should be used to improve proper record submission.
• Setting up a process to facilitate responding to and routing calls from background check operators conducting enhanced background checks. 

In point-of-contact states, where in-state officials run gun purchase background checks instead of the FBI, governors should direct the agency in charge to set up an analogous process to the new federal investigation. Each covered state should confirm that it can update its procedure via policy, and does not need other formal action to make this change.

State legislatures can leverage the momentum of the federal law and take additional steps now to help keep guns out of the wrong hands by requiring all gun buyers to be at least 21 years old. The new federal law reflects a bipartisan consensus that people under 21 years old pose a special threat with firearms. State legislatures can act boldly by raising the minimum age for gun purchases or concealed carry to 21.

Funding Community Violence Intervention Programs

The BSCA includes $250 million over 5 years in dedicated funding for evidence-informed, community-based violence intervention programs that have been proven to reduce gun violence in the most affected communities using a public health approach. The grant program will be run by the Department of Justice, and build off the new $50 million grant program in the fiscal year 2022 omnibus appropriation package. States should act now to take advantage:

• Educating and encouraging local governments and community-based organizations to apply for competitive grant funding for community-based violence intervention programs, which is expected to be awarded under the Department of Justice’s Office of Justice Programs Community Based Violence Intervention and Prevention Initiative.
• Helping to build the case publicly for the impact of these programs by funding sophisticated evaluations; publishing best practices and building knowledge to serve as a technical assistance and capacity building provider (or connector to outside experts); and convening stakeholders and serving as a public advocate for these mission-critical gun safety solutions, especially in towns and cities that are slow to appreciate and adopt them.

Disarming Domestic Abusers and the Dating Partner Loophole

The BSCA expands the current prohibition preventing convicted domestic abusers from buying or possessing guns to include not only those who abused their current or former spouses, but also those who abused their current or recent dating partners. The gun prohibition for dating partners convicted of misdemeanor crimes will last only for five years if they are not otherwise prohibited, have never been convicted of any other misdemeanor crime of domestic violence against a dating partner, and were not convicted of assault during that five-year period.²The exclusion applies to any convictions for assault with the use of force, threatened use of force or use of any deadly weapon.

State executives should take action now to ensure that the new federal prohibition is enforced properly:

• Educating judges and court staff on the new federal prohibition and providing guidance on determining whether a relationship involves “current or recent dating partners” under the new federal standard.
• Requiring that all prohibiting domestic violence records submitted into NICS contain a clear indication that a record is prohibiting under federal and/or state law. As domestic violence records are only prohibiting under certain circumstances, they may not be caught during a background check if they were not properly labeled when entered into the system. States can apply for new federal funding to support these efforts.

Lawmakers should consolidate the federal breakthrough on this issue, putting the strongest possible state laws in place to keep guns out of the hands of domestic abusers:

• State legislatures should prohibit abusers under restraining orders: All fifty states should ensure they prohibit abusive partners who are under restraining orders for abusing their dating partners. While Congress did not act to cover these individuals, 22 states have done so, with another 9 states that prohibit many abusers under restraining orders but not dating partners.
• State legislatures should prohibit convicted abusers from having guns: All fifty states should ensure that they have matching prohibitions in their codes covering dating partners, so that state authorities can enforce the law properly. Only 20 states already cover these abusers, while an additional 11 states prohibit convicted domestic abusers in general but do not cover dating partners.

Removing illegal guns: With new Congressional action to address the intersection of gun violence and domestic violence for the first time in 25 years, states should redouble their efforts to enforce these laws by ensuring illegal guns are removed promptly.

• In states with relinquishment laws in place, courts and law enforcement should work together to build out programs that remove illegal guns through the court system, at the time of a conviction or the start of a restraining order. Twenty-three states have taken action to do so – those states can audit and improve their current work, and increase funding through state coffers or federal grants. 
• In the states without relinquishment laws in place, legislators should enact new requirements immediately. Governors can also take action to build strong programs even without legal requirements in place.
• States, local governments, and courts should apply for federal funding to assist in implementing firearms relinquishment policies and practices throughout the civil and criminal justice system, and seek technical assistance from the Office of Violence Against Women.³The Office of Violence Against Women had a targeted solicitation in Fall 2021 to support relinquishment policies; a similar solicitation may be forthcoming for 2022. States can also seek Improving Criminal Justice Responses funding.

In states that keep records of gun sales, Governors can take bold action by directing the creation of centralized illegal gun removal programs that identify in real-time when gun owners become prohibited – and ensure they are disarmed. Only seven states currently have these programs.

Strengthening the Background Check System

The BSCA provides $200 million to states to make more records available to the background check system. Governors should ensure that appropriate state agencies apply for this grant funding, which is likely to be awarded through the NICS Act Record Improvement Program, to improve the submission of criminal and mental health records into the federal background check system:

• Identifying gaps in existing practices for reporting prohibiting records into NICS, and taking all appropriate steps to close these gaps. This includes submitting records that existed prior to the enactment of any relevant state record-submission laws,⁴Under the BSCA, dating partners prohibited by a misdemeanor crime of domestic violence conviction are only prohibited on a forward basis. However, 20 states already prohibit dating partners convicted of MCDVs, and these states should ensure that all past MCDV convictions are submitted. ensuring that records from courts, health facilities, and any entity holding prohibiting records are submitted, and requiring that all records be submitted within a short, designated period of time following the prohibiting event.
• Requiring that all records submitted into NICS contain a clear indication that a record is prohibiting under federal and/or state law. This is particularly important for records of misdemeanor domestic violence convictions and domestic violence restraining orders, which are only prohibiting under certain circumstances – and which may not be caught during a background check if they were not properly labeled when entered into the system.

The new law also clarifies the federal requirement that people “engaged in the business” of selling firearms must be registered as dealers, making it more clear when people who sell guns to strangers are required to obtain a federal license and run background checks on all their buyers.  States can help enforce this standard, working with federal officials to identify high volume gun sellers who have failed to obtain a federal firearms license under the revised standard set forth in the BSCA.

States should take this opportunity to also establish or strengthen their own requirements:

• In the states that require state gun dealer licensing, Governors should direct the appropriate authorities to review existing requirements and oversight, and to mandate additional rules and oversight to fill any gaps, including background checks and training for employees, robust physical security to prevent theft, and thorough record-keeping.
• State legislatures in states without these laws should pass legislation requiring gun sellers to obtain a state-issued license and mandating strong rules and oversight.

Cracking Down on Gun Trafficking

The new federal law establishes the first ever federal laws against interstate gun trafficking and straw purchasing to stop the flow of illegal guns into cities. The law will make it illegal to buy a gun for someone a person knows or has reasonable cause to believe is prohibited from possessing them or planning to commit a crime. Governors and mayors should prepare the relevant agencies to work with federal law enforcement officials to identify, investigate, and bring illegal gun traffickers to justice.

Governors and mayors can take further steps to help combat gun trafficking by working with the appropriate agencies to:

• Build a data intelligence tool that identifies illegal guns and their sources, providing a real-time view of crime gun data and helping to expand investigations and break up trafficking rings. 
• Commit to publishing information about dealers and other industry actors who fuel these networks.

Funding School Safety Resources

The BSCA includes $300 million in new grant funding for school violence prevention efforts. The new money, provided pursuant to the STOP School Violence Act, helps primary and secondary schools implement evidence-based school safety programs, including programmatic interventions such as tip lines and threat assessment, and targeted school security improvements. State agencies, local governments, and higher-education institutions should seek this federal funding and put it to use:

• Increasing awareness of firearm storage practices, and distributing information to parents about the importance of secure storage to keep guns out of the hands of students, kids, and teens. The most common sources of guns used in school shootings are the shooter’s home, the home of friends, and the home of relatives. 
• Creating and enhancing evidence-based threat assessment programs in schools, helping schools identify students who are at risk of commiting violence and resolve student threat incidents by getting the students the help they need.
• Establishing tip lines to promote the sharing and collection of information about threats.
• Implementing expert-endorsed school security upgrades, including access control measures that keep shooters out of schools as well as internal door locks. 
• Initiating effective, trauma-informed emergency planning, allowing for a prepared response if an incident of gun violence does occur on school grounds.

States should also respond to this historical moment, partially fueled by the tragic school shooting in Uvalde, Texas, by passing and strengthening secure storage laws which hold gun owners accountable when children can or do access an unsecured gun. The most protective and comprehensive laws require gun owners to secure their firearms whenever they are not in their immediate possession or control.

• In the states with secure storage laws, state legislatures should look to strengthen their requirements.
• In the states lacking a secure storage policy, state legislatures should prioritize passing these life-saving laws.

How strong are the gun laws in your state?

Appendix

Estimated FY22 Allocations for JAG Crisis Intervention Funding

States that are bolded and starred* have Extreme Risk Laws.