Tag: gun control

Don’t Fall For Obama’s Gun Control Folly

Washington Post Columnist Courtland Milloy says he isn’t falling for Obama’s gun control proposal.  Here’s an excerpt from his column today:

Politicians would do well to learn how the real war on gun violence is being fought. For example:

In federal court last week, 23-year-old Ezra Griffith was convicted of unlawful possession of a firearm by a felon. D.C. homicide detectives had confiscated a 9mm Glock with an extended 30-round magazine during a search of Griffith’s apartment in Southeast Washington. The U.S. Attorney’s Office successfully prosecuted the case.

Another gunman off to jail. Another gun off the streets. That’s how it’s done. Go after the criminal. Take his illegal gun. Leave everybody else alone.

The proposed national gun control legislation would make it harder for law-abiding citizens to purchase guns — and, if passed, would surely be hailed as a victory over the “gun lobby.” But it would do nothing to curb gun violence where the problem is at its worse — in black neighborhoods. Nor would it do much to stop the kind of carnage that occurred in Newtown last year.

Supreme Court Ducks Key Second Amendment Issue — For Now

Alas this morning the Supreme Court declined to review Kachalsky v. Cacace the challenge to New York City’s effective ban on carrying firearms (which I’ve previously discussed).  To correct some early media reports, this does not mean that the Court upheld the law or affirmed the decision of the U.S. Court of Appeals for the Second Circuit.  It simply means that the scope of the Second Amendment right to keep and bear arms outside the home remains an open question, subject to divergent rulings in the lower courts.

But those lower-court rulings have indeed diverged greatly, creating what lawyers call a “circuit split.”  The Second Circuit in Kachalsky applied a nominal intermediate scrutiny that ultimately became perfunctory deference to the legislature, with the burden on the plaintiffs to justify the exercise of their rights. The Seventh Circuit, meanwhile, in an opinion by Judge Richard Posner in Moore v. Madigan, struck down Chicago’s complete prohibition on carrying firearms, finding that Illinois could not justify such extreme measures.  For “a severe burden on the core Second Amendment right of armed self-defense,” the same court ruled in an earlier case, the government must provide “an extremely strong public-interest justification and a close fit between the government’s means and its end.””  The D.C. and Fourth Circuits, meanwhile, have presumed the constitutionality of legislated restrictions, although D.C. Circuit Judge Brett Kavanaugh wrote an important dissent suggesting that the scope of the right to carry should be determined by analogizing historical practice and precedent.

Those who follow firearms policy now recognize that this issue that was left open by District of Columbia v. Heller – the scope of the individual right that the Second Amendment protects – is crying out for resolution.  As Cato said in the brief we filed supporting the Kachalsky petition:

The Second Amendment’s scope and the means of assessing restrictions on that right thus remain largely undefined. No other constitutional right has been so left to fend for itself in the lower courts. This Court has not hesitated to seize opportunities to ensure the protection of other constitutional rights—recognizing historically based categorical rules, developing comprehensive methodologies, and announcing robust standards. The Second Amendment merits, and now needs, the same solicitude.

Whatever analytical approach the Court ultimately employs, the time has come to begin filling in the picture that the Court outlined in Heller, and to bring some harmony to the cacophony below.

We’ll now have to wait a bit longer for the Court to do that. As is always the case, the Court doesn’t give reasons for granting or denying review, but it’s possible that the Court didn’t want to take a gun case from the Second Circuit, which has jurisdiction over Connecticut, where the Newtown shootings occurred.  Or it may be waiting for Moore v. Madigan, because taking a petition brought by a state government would be seen as less discretionary – and would also allow the Court to focus on a complete ban on the right to carry rather than severe restrictions.  (D.C. and Illinois are the only jurisdictions that have flat bans, while 10 states, including New York, “may issue” such licenses in practice, but most rarely do in practice except to celebrities and former law enforcement officers.  The vast majority of states “shall issue” carry licenses unless the applicant has a felony conviction or mental illness, while a handful don’t require a license at all.)  

In any event, the issue isn’t going away and there’s only so long that the Court will be able to bear the legal incongruity and uncertainty. As former solicitor general Paul Clement – who represented the NRA in McDonald v. Chicago put it, “They’re eventually going to have to take it.”

Spinning the News

A headline in Roll Call, the newspaper and website that has been “the source for news on Capitol Hill since 1955,” over an article by long-time journalist and editor David Hawkings, reads

D.C. Could Take Lessons From Hartford on Gun Control Deal

What’s the lesson? That when legislators buckle down and work hard, they can pass “the strongest gun control law in the nation.”

This reflects two articles of faith that seem to be devoutly held by mainstream journalists:

1. Passing laws is good. Passing more laws is better. The purpose of a legislative body is to pass laws.

2. Gun control is good.

On the first point, just consider the large number of stories, especially this past December and January, on “the least productive Congress in history.” The assumption is that “productivity” for Congress is passing laws—laws that in most cases will raise taxes, raise spending, increase regulation, and/or intrude the federal government into more aspects of our lives. 

As for gun control, the enthusiasm of the national media for such measures is pretty obvious. I was struck by NPR’s hourly news roundup last week, which began: 

More than 100 days after the shootings in Newtown, Connnecticut, that killed a total of 28 people including 20 elementary school students, Congress has still not passed new gun registration legislation.

“What are they waiting for?” the news anchor implies. I suppose the news report could have begun:

Just five years after the Supreme Court ruled that the Second Amendment protects the individual’s right to bear arms, members of Congress are seeking to pass gun control legislation.

But I’m not holding my breath. It’s just a reminder that the language used even in straight news stories can frame the issue in the minds of readers and listeners.

Kopel on Obama’s ‘Common Sense’ Gun Controls

Dave Kopel has a new piece over at NRO.  Here’s an eye-catching excerpt:

Public-opinion polls about “universal background checks” for gun sales show widespread support. While President Obama and Mayor Bloomberg talk about “gun sales,” the actual legislation moving through Congress aims to regulate far more than sales. It would turn almost every gun owner into a felon. The trick is that the language under consideration applies not only to sales but also to “transfers,” which are defined to include innocent activities such as letting your spouse borrow your gun for a few hours.

 

Senate Judiciary Committee Hears from Cato on Gun Policy

Yesterday, the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Human Rights – the same one where I testified regarding campaign finance post-Citizens United last summer – held a hearing, titled “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.”  In the lead-up to the hearing, the subcommittee’s new ranking member, Sen. Ted Cruz (R-TX), solicited written testimony from Cato on the subject.  He got it in spades.  Here are the Cato-affiliated scholars who submitted materials:

  • Associate policy analyst David Kopel provided an excellent summary of his decades of research on firearms law and policy.
  • Senior fellow Randy Barnett outlined the constitutional considerations that must attend any discussion of gun regulation.
  • Chairman Bob Levy attached a short cover letter to his timely National Law Journal article that critiques the current state of play.
  • I sent in an essay about the right to keep and bear arms generally that incorporates two blogposts and five op-eds by Kopel, Levy, Trevor Burrus, and myself.

If anyone else on Capitol Hill needs a full-court press on an issue ahead of a hearing, you know where to find Cato.

D.C. Treats Celebrities Better Than Veterans, Illustrating the Absurdity of Gun Laws

Last month, D.C. attorney general Irvin Nathan announced that he would not be prosecuting David Gregory for displaying an empty ammunition magazine on his national TV show Meet the Press—even though NBC knew ahead of time that this action would violate D.C. law. In a letter to NBC, Nathan admonished Gregory for knowingly flouting the law, but said he decided to exercise “prosecutorial discretion” and not pursue a criminal case. “Prosecution would not promote public safety in the District of Columbia, nor serve the best interests of the people,” Nathan wrote.

In the Washington Post story about this episode, I was quoted as calling Nathan’s decision “a wise use of prosecutorial discretion” but that the episode “illustrates the absurdity of some of these gun laws.”  My position apparently paralleled that of the NRA—even though Gregory had waved the illegal magazine in front of the group’s executive VP, Wayne LaPierre—but “thousands of gun advocates” signed a White House petition calling for Gregory’s arrest because he ought to be treated the same as anyone else.

Indeed, a friend soon pointed out to me that D.C. authorities were not treating people equally: Last summer, Army Specialist Adam Meckler, a veteran of the Afghanistan and Iraq wars, was arrested and jailed for having a few long-forgotten rounds of ordinary ammunition—but no gun—in his backpack in Washington. Meckler violated the same section of D.C. law as Gregory did, and both offenses carry the same maximum penalty of a $1,000 fine and a year in jail.  [H/t: Jason Epstein]

Well, that’s disgusting, and D.C. authorities ought to be ashamed of themselves. But the correct response isn’t to waste taxpayer dollars on prosecuting David Gregory, but rather to not prosecute the Adam Mecklers of the world. 

Now, I’ve never been a prosecutor or even practiced criminal law, so it could well be that it’s outside the ethical bounds of discretion not to charge someone who so brazenly flaunts the law as Gregory and the NBC producers did. But if incidents like these doesn’t make people realize that it’s lunacy to criminalize, as a strict liability offense, no less (meaning that your knowledge or mental state is irrelevant), the mere possession of magazines, bullets, and other gun-related accoutrements (without even getting to an “assault weapon” ban, etc.), then nothing will. A magazine is a metal box with springs, of which there are hundreds of millions in the country.  A bullet is a piece of metal that, in the absence of a gun, is less deadly than a rubber band. It’s people who insist on demonizing such objects that lend creedence to those on the other side who believe that any gun regulation is a step toward confiscation and tyranny.

Let me be even clearer: Criminalizing the possession of a magazine or bullet is as extreme as legalizing the private ownership of nuclear missiles. The idea that celebrities should be treated no differently than anyone else is an important one to draw from the David Gregory incident.  But it’s even more important, at least in the context of our ongoing discussion over gun policy, to understand that putting stupid laws on the books doesn’t make us any safer and indeed draws resources away from actions (like investigating, prosecuting, and preventing violent crime) that do.

Obama’s Andrew Shepherd Moment?

Washington Post columnist Richard Cohen today laments what he calls the “cratering of liberalism.” Cohen remembers that the “liberal agenda once included confiscating handguns and abolishing the right to own one.” Yes, agreed, we should remember that. Liberals would really like Obama to channel Michael Douglas, who played a liberal commander-in-chief in the Rob Reiner/Aaron Sorkin film, The American President (excerpt below). Should we do this in the inaugural address or the state of the union? That’s probably the debate among Obama’s speechwriters.