A ban on semiautomatic rifles and handguns would not pass constitutional muster.
A ban on semiautomatic rifles and handguns would not pass constitutional muster.
O ur politicians often exhibit too much creativity, inventing new problems to be solved by highly paid staff administering big budgets instead of figuring out how to get government to do the ordinary boring things with a reasonable degree of competence. But sometimes they do not exhibit enough imagination, as with Democratic demands for gun-control measures, renewed in the aftermath of two horrible massacres only a few days apart.
The firearms used in these crimes were, as far as the evidence indicates, legally acquired from federally licensed and regulated firearms dealers. That means that the killers passed background checks. The demand that other people pass background checks in other circumstances (for example, if you give someone a firearm as a gift) is completely irrelevant to these crimes. It is not even entirely clear that the federal government has the constitutional authority to regulate private transfers that take place within a single state and therefore do not constitute interstate commerce. But even if it did, such measures would not prevent crimes such as the ones in Atlanta and Denver, nor would they do much to prevent other kinds of crimes, because criminals most often come by their weapons by means of straw purchasers (people with clean criminal records who buy guns on behalf of felons who cannot pass a background check), by buying stolen guns, or by stealing the guns themselves.
And as much as Joe Biden and his allies may stamp their feet, the federal government cannot ban firearms of the sort that were used in these shootings. They are not exotic, military-grade “weapons of war,” but two of the most common firearms sold and used in the United States. The Supreme Court has made it clear that certain kinds of restrictions are consistent with the Bill of Rights: For example, fully automatic weapons (“machine guns”) are subject to such stringent regulation that it effectively amounts to a general prohibition. But the Bill of Rights protects weapons “in common use.” There may be no weapon in more common use than the 9mm handgun wielded in Atlanta and the 5.56mm semiautomatic rifle used in Colorado.
The anti-gun advocates demand: “Why would anybody need a rifle like that?” The best, most direct, and most American answer is: “None of your goddamned business.” We don’t expect Americans to prove that they need free speech or freedom of religion or that they need the means to exercise those rights. But, contrary to what our friends on the left often claim, those scary black rifles have many legitimate uses: People do indeed hunt with them, mostly small animals — in spite of all the talk about “high-powered rifles,” these weapons are not powerful enough for hunting deer or feral hogs, and hunting regulations in some jurisdictions have over the years specifically excluded them from such uses. They are frequently used by ranchers, farmers, and residents of rural areas to control coyotes and other pests. That may all sound pretty exotic if you live in Brooklyn or D.C. That’s why we have 50 states.
If congressional Democrats and the Biden administration pass a law purporting to ban these weapons, that ban is going to be ruled unconstitutional. It would be plainly incompatible with Heller and with the Second Amendment. It would be a waste of time.
It was a waste of time the last time around, too, during the Clinton administration. The federal government did purport to ban some of these firearms at that time. The effect on violent crime was precisely squat. Violent crime was declining when the unconstitutional Assault Weapons Ban was passed. It kept declining while the ban was in effect. It kept declining after the ban was repealed.
Mass killings are not a uniquely modern phenomenon nor are they uniquely related to American gun culture. The most deadly massacre at an American school took place in Bath, Mich., in 1927, and it involved no firearms at all. Mass killings happen in other countries with cultures different from ours, but it is true that Americans are an extraordinarily violent people, as attested to not only by how often we shoot one another but also by how often we stab, strangle, drown, and club one another to death. Culture matters: Gun-loving, militia-fortified Switzerland has twice the gun ownership rate of Honduras, but the Honduran murder rate is 72 times that of Switzerland.
Americans have a problem that is not very much amenable to legislation, because it is a national problem of the soul.
Which is not to say that there is not room for better governance. While Democrats in Washington are talking up symbolic and unconstitutional measures primarily designed as culture-war campaigns against declassé rural types, other Democrats — in Philadelphia, Chicago, Houston, etc. — more or less refuse to investigate and prosecute straw-buyer cases unless they are part of a bigger organized-crime conspiracy case. Federal prosecutors in violence-plagued Chicago publicly stated as a matter of policy that they would not prioritize such cases and would take them up only if they were part of a larger trafficking investigation. The ATF prosecutes almost nobody for the federal crime of lying on the federal paperwork that accompanies sales at licensed dealers, and when the feds discover after the fact that they have wrongly approved a sale to someone prohibited from purchasing a firearm, they don’t even go to the trouble of sending some flunky around to pick up the illicit firearms. Low-level firearms-possession cases routinely go unprosecuted, leaving career criminals effectively free to go about their business armed until they risk prosecution by actually shooting somebody.
The Democrats run the federal government: White House, Senate, House of Representatives. This is their show. They also run almost all of the big cities where shootings are a horrific daily occurrence. The gun lobby isn’t stopping the police and the prosecutors from doing their jobs when it comes to illegal possession and illegal acquisition of firearms — the gun lobby is begging them to do their job. And, for the most part, they won’t lift a finger, because there isn’t any political juice in it for them.
Biden and his allies could — if they wanted to — do their jobs.
Or they could waste our time with useless symbolic measures that the courts are going to throw out. And that’s what they are going to do, because it is better politics.