The NRA Takes Aim at 10th Amendment

May 29, 2002 • Commentary
This article was first published in FOX News Online, May 29, 2002.

National Rifle Association Executive Vice President Wayne LaPierre recently gave a fiery speech before the NRA Annual Convention, railing against those who would shred the Constitution in the wake of the Sept. 11 terror attacks.

The Constitution, he said “is pristine and inviolate…The Bill of Rights doesn’t care about opinion polls. It doesn’t tolerate cherry‐​picking some parts but not others.”

Strong words and fine sentiments; but, ironically, the NRA is currently engaged in the very trade‐​off that LaPierre decried. The organization played a key role in promoting President Bush’s crime‐​control initiative, Project Safe Neighborhoods, which undermines the 10th Amendment in the hopes of saving the Second.

To assuage public fears about violent crime and ward off calls for additional gun control, the NRA has repeatedly called for an expanded effort “to enforce the gun laws on the books.” Taking the NRA’s advice, President Bush has adopted a crime control plan, Project Safe Neighborhoods, that throws constitutional principle to the wind for the illusory promise of public security.

Under Bush’s plan — enthusiastically backed by the NRA — gun crimes that would ordinarily be prosecuted at the state level — such as possession of a handgun by a felon or drug user — will be channeled into the federal system. In addition to federalizing gun crimes, PSN acts as a prosecution‐​stimulus package, funding the placement of more than 700 new prosecutors (113 federal, 600 state) who will pursue gun law violations full‐​time.

What’s wrong with that? Two things, actually. First, PSN flagrantly violates the 10th Amendment and erodes the states’ primary responsibility for criminal law enforcement. Second, the program will likely lead to a mindless zero‐​tolerance policy toward technical infractions of the gun laws, resulting in long prison sentences for marginal offenders who do not deserve to be in jail.

Shortly after his inauguration, President Bush told the National Governors Association: “I’m going to make respect for federalism a priority in this administration. Respect for federalism begins with an understanding of its philosophy. [The framers of the Constitution] believed that our freedom is best preserved when power is dispersed. That is why they limited and enumerated the federal government’s powers and reserved the remaining functions of government to the states.”

In essence, the President was talking about the 10th Amendment, which says that if a power has not been delegated to the federal government by the Constitution, it remains with the states or the people.

The people never delegated to the federal government the power to prosecute ordinary, garden‐​variety gun crimes. As Alexander Hamilton put it in the Federalist Papers, “the ordinary administration of criminal justice” belongs to the states.

But PSN takes over the ordinary administration of criminal justice from the states. And if the federal government has the power to prosecute local handgun crimes, it’s hard to see why it doesn’t also have the power to punish ordinary assault, drunk driving, traffic violations, or anything else we’ve traditionally left to the states. Anyone who respects federalism and views the Constitution as “pristine and inviolate” recognizes that the federal “gun laws on the books” ought not to be on the books in the first place.

More disturbing still is the prospect that PSN will lead to a mindless “zero tolerance” policy for technical infractions of gun laws. Federal prosecutors already operate under an incentive structure that George Washington University Law School Professor Jonathan Turley compares to “the body count approach in Vietnam… They feel a need to produce a body count to Congress to justify past appropriations and secure future increases.”

This “body count” mentality may help explain the fact that recent federal firearms prosecutions have included a Colorado woman who was convicted under the felon‐​in‐​possession statutes for posing nude on the Internet with a gun, and an Iowa man who was sent to federal prison for 15 years for possession of a single .22‐​caliber bullet.

We can expect more of the same as Project Safe Neighborhoods ramps up firearms prosecutions because, unlike a regular prosecutor, a Safe Neighborhoods prosecutor’s full‐​time job is pursuing gun offenders. He or she will not be able to turn to other areas of the criminal code after the worst gun‐​law violators have been prosecuted. Add to this the fact that a job as a full‐​time gun prosecutor is likely to appeal disproportionately to attorneys with an ideological hostility towards gun ownership, and PSN begins to sound like something dreamed up by Sarah Brady herself.

Sound far fetched? Then consider the case of Michael Mahoney, profiled recently in the Wall Street Journal. Mahoney, a Tennessee businessman, is currently serving a 15‐​year term in federal prison as the result of a minor handgun offense.

As the owner of a bar and pool hall, Mahoney had to make nightly cash deposits at his local bank and wanted to carry a pistol for personal protection while he did so. He bought one at a pawnshop, filling out the background‐​check form required by federal law. The problem for Mahoney was that 13 years earlier, he had been convicted of selling drugs to an undercover police officer. After serving his time for the drug charge, Mahoney cleaned up his act and stayed out of trouble for more than 10 years.

Because of that, in 1991 when he underwent an extensive background check to get a liquor license, the license was granted. Mahoney, wrongly assuming that his lone felony conviction had also been wiped clean with regard to his gun rights, marked down that he was not a felon on the federal background check form for gun purchases. That got him indicted as a convicted felon in possession of a firearm.

Though U.S. District Judge James D. Todd protested that Mahoney’s was “not the kind of case that Congress had in mind,” federal mandatory minimum sentencing rules forced him to treat Mahoney with the kind of severity merited by brutal thugs — a 15‐​year sentence.

Michael Mahoney is a symbol of what can happen when overzealous prosecutors put securing convictions ahead of serving justice. PSN promises to put more than 700 new full‐​time gun prosecutors to work. As the program is implemented, we can expect more Michael Mahoneys to go down. And if that’s the case, Wayne LaPierre and the NRA may come to rue the day they sacrificed constitutional principle to embrace it.

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