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With new proposals, Janet Mills treads lightly into charged gun debate

Democratic Gov. Janet Mills, right, with Chief Justice Valerie Stanfill, greets lawmakers prior to delivering her State of the State address, Tuesday, Jan. 30, 2024, at the State House in Augusta, Maine.
Robert F. Bukaty
Democratic Gov. Janet Mills, right, with Chief Justice Valerie Stanfill, greets lawmakers prior to delivering her State of the State address, Tuesday, Jan. 30, 2024, at the State House in Augusta, Maine.

Gov. Janet Mills reset the political debate over guns in Maine on Tuesday by unveiling a suite of policy proposals that she says were shaped or inspired by conversations since October’s mass shooting in Lewiston.

What Mills unveiled in her State of the State speech – most notably, expanding background checks to many private gun sales and tweaking Maine’s “yellow flag” law – fell short of what gun control advocates say is needed in Maine. And the proposals exceeded what some gun rights groups say is acceptable in a heavily armed, gun-friendly state with low crime rates.

For her part, Mills described the proposals as “practical, common-sense measures” that are also achievable in this year’s legislative session.

If the measures pass, it would represent a seismic political shift in a state where even Democratic lawmakers from rural areas tout endorsements from gun owners’ rights groups. As recently as last year, a minority of Democrats joined Republicans to defeat multiple gun safety measures, including a background check expansion bill. And they did so with Mills’ explicit or tacit support.

Those dynamics have clearly shifted since Oct. 25, when a gunman killed 18 and wounded more than a dozen during Maine’s worst mass shooting.

“They are not extreme or unusual,” Mills told lawmakers. “They are not a cookie-cutter version of some other state’s laws. They are Maine-made and true to our culture and our longstanding traditions while meeting today’s needs.”

That message apparently resonated with folks often on opposing sides of the gun issue.

“I do appreciate the governor’s position,” said David Trahan, a former Republican state lawmaker who, as executive director of the Sportsman’s Alliance of Maine, is an influential voice on gun policy and gun owners’ rights at the State House.

Since the shooting, Trahan has spoken with Mills or her office staff multiple times on potential policy responses. While he wasn’t prepared to endorse Mills’ plan, Trahan said “I am not going to criticize her for it.”

“She has been measured to try to talk to Maine people and craft a Maine proposal,” Trahan said. “And I like that approach. We are not California and we are not New York.”

Assistant House Democratic Leader Rep. Kristen Cloutier of Lewiston said she was excited about the proposal, although she acknowledged some in her caucus will push for more.

“There are some folks who think this doesn’t go far enough, there are some folks who think this goes too far,” Cloutier said. “And I know that she has been deliberate in her conversations with folks and making sure ... that is specific to the state of Maine.”

This isn’t a new role for Mills — playing the moderate broker both within her increasingly left-leaning Democratic Party as well as between Democrats and Republicans. That’s how Maine ended up with the nation’s only “yellow flag” gun law, which is less restrictive than “red flag” laws on the books in more than 20 other states. (More on that below.)

All that said, the governor’s proposals will still face headwinds, particularly from many Republican lawmakers who are already signaling their opposition. Below we delve a bit deeper into two initiatives likely to spur the most debate.

Private gun sales

The most contentious fight will likely center on the governor’s proposal to require background checks on private gun sales that are advertised online or in print. Mills also wants to make it a felony offense to “recklessly” sell a gun to someone who can’t legally own one as a way to “incentivize” private sellers into having a licensed dealer run the names of would-be buyers through the FBI’s National Instant Criminal Background Check System, also known as NICS.

This aims to close what critics contend is a gaping loophole in Maine law that feeds a massive, largely unregulated gun marketplace in the state, sometimes with tragic consequences.

For example, a person who is prohibited from owning a gun because of a felony conviction would be rejected by a federally licensed firearms dealer after their name is flagged in NICS. But Maine doesn’t currently require background checks on private sales, so that same prohibited person could obtain an AR-15 or any other gun in such a transaction with no questions asked.

The detailed language of the governor’s proposal is not available yet. But according to Mills’ office, the bill would require private sellers to conduct background checks if they “advertised” the gun with an online posting or in print through a classified listing, such as Uncle Henry’s.

According to Trahan, the governor also wants to require background checks for private sales that happen on the premises of a gun show — a provision aimed at capturing person-to-person sales happening in parking lots, hallways or elsewhere at the show.

At the same time, Mills said her proposal won’t apply to sales or transfers among family members, friends, hunting partners, neighbors, etc. This carve-out aims to differentiate Mills’ proposal from the 2016 statewide referendum that failed at the ballot box in large part because of opposition from hunters, gun rights groups and some police groups.

Trahan, who helped lead that opposition campaign in 2016 said the Sportsman’s Alliance of Maine has typically opposed “universal background checks.”

“But this proposal from the governor does not appear to be universal background checks,” Trahan said. “It’s much more narrow, addressing gun shows and commercial sales.”

Unique in the nation

If Mills’ proposal is enacted, Maine could be unique among the 15 states (plus Washington, D.C.) that require background checks on some or all private sales and transactions conducted by unlicensed gun dealers, according to summary data from the Giffords Law Center to Prevent Gun Violence.

But this isn’t a new concept, either. A similar proposal was put forward in Congress in 2013 immediately following the Sandy Hook Elementary School shootings that killed more than two dozen children and teachers. But despite support from a majority of senators, the proposal from Democratic Sen. Joe Manchin of West Virginia and Republican Sen. Pat Toomey of Pennsylvania died under a Republican filibuster.

A different shade of yellow (flag)

The other proposal from Mills guaranteed to spark heated debate is a change to Maine’s 5-year-old “yellow flag” law that allows police to temporarily confiscate the guns of people deemed potentially dangerous to themselves or others.

The core features of Maine’s unique-in-the-nation yellow flag law won’t change. After police take a person into “protective custody,” a medical practitioner and a judge must agree that the person poses a threat before the court can order them to temporarily surrender their firearms. But Mills, who is a former Maine attorney general and prosecutor, wants to allow police to also seek a judge’s permission to take someone into custody even if they have not yet committed a crime.

This is a direct response to the questions swirling around why police didn’t invoke the state's yellow flag law amid concerns about the Lewiston gunman, Robert R. Card II.

Several of Card’s family members and fellow Army reservists had flagged his deteriorating mental health, his veiled threats and his access to guns. However, Sagadahoc County Sheriff’s deputies told members of an investigative panel last week that, because Card had not committed any crimes and no one was pursuing charges against him, they didn’t feel they had grounds for taking him into custody, much less forcing their way into his home.

“This will remove a barrier by providing law enforcement with another tool to find the person, with a court order, to ensure that someone is taken into protective custody and that their weapons are removed,” Mills said during her Tuesday speech.

Much like limited expansion of background checks proposed by Mills, this tweak to the yellow flag law isn’t sitting well with the entrenched groups on either side of the gun divide.

Gun control advocates want Maine to join 20-plus other states with more restrictive red flag laws on their books while gun owners’ rights advocates contend both versions violate a person’s constitutional due process rights. (Red flag laws typically lack the medical evaluation requirement and often allow family members to directly petition a judge to order someone to give up their guns without going through police.)

But Trahan, who helped negotiate the yellow flag law in 2019, said he likes the governor’s proposal because she isn’t trying to change those due process standards.

“They're still highest in the country when you take a person's liberty away," he said. "From what I see, she's trying to improve the law, not change it into red flag law."

Maine's Political Pulse was written this week by State House correspondent Kevin Miller and chief political correspondent Steve Mistler, and produced by digital editor Andrew Catalina. Read past editions or listen to the Political Pulse podcast at mainepublic.org/pulse.