By Ben Keane and Brian Darling
The wake of a violent tragedy is an appropriate time for reflection, investigation, prayer, and the promotion of healing. It is a particularly inappropriate time for political opportunism.
After last weekend’s tragedy in Arizona, Congress should put the breaks on any desire to ram through gun-control legislation that will neither solve the perceived problems in federal law nor prevent any future assaults on public officials. Observation teaches us that in the wake of crisis, politicians’ instinctive reaction is to check the legislative box and claim that they have solved a problem by passing legislation – any legislation. More often than not, however, such knee-jerk legislation fails to deter future bad actors and creates more problems than solutions.
Despite this reality, politicians on both sides of the aisle are already rushing to the floor in Congress to announce legislation supposedly designed to “prevent” the next madman from inflicting harm on our elected officials or other innocent Americans. Representative Peter King (R-NY) was one of the first to offer up a hasty legislative reaction to the Arizona tragedy, proposing a new law that would “make it illegal to knowingly carry a gun within 1,000 feet of certain high-profile government officials.”
While King has yet to develop specific legislative language for the bill, he asserts that such a law “would give federal, state, and local law enforcement a better chance to intercept potential gunmen before they pull the trigger.” In the abstract, this overarching goal may play well politically and receive positive media reaction in the wake of the horrible atrocity in Tucson. In reality, however, King’s provision is likely to prove impossible to enforce, raise a number of constitutional objections, and provide little in the way of additional protection for government officials.
As many commentators have already pointed out, it seems extremely unwieldy to enforce a law that provides a roving 1,000-foot gun-free bubble around every so-called “high-profile government official.” Such a piece of legislation literally and figuratively creates a moving target for both law-enforcement officials and law-abiding citizens. Imagine being a police officer tasked with securing such a gun-free bubble. Do you set up a continuously moving perimeter around the official? Do you attempt to frisk or question every person who enters the bubble? Application of the law is no less clumsy from the average citizen’s perspective. An unsuspecting citizen at one end of a street could be window shopping with a legally-licensed firearm only to come into a public official’s 1,000-foot bubble as he or she meanders down the same sidewalk. Likewise, a hunter or recreational gun user at a firing range could be subject to criminal liability for exercising their lawful Second Amendment rights because they were innocently rubbing elbows with a public official.
These examples also highlight some of the potential constitutional problems with King’s proposal. Not only would the bill generate a number of serious Second Amendment and individual-liberty questions related to gun ownership and possession, but it would also raise red flags regarding the legislation’s handling of the constitutional principle of fair notice. Along these lines, it is fair to ask whether the bill requires that the gun possessor have actual knowledge that his gun possession is prohibited before imposing criminal penalties on him? Likewise, it is reasonable to ask whether violators only need to know that they have a gun (a perfectly legal and constitutional act in most jurisdictions) to be charged, or whether they need to know that they are carrying a gun within the prohibited bubble zone? These are important questions that King has yet to address, but they point to a number of more significant problems with his preliminary proposal.
Even more problematic, however, is the simple fact that King’s proposal would do little to prevent attacks like the one allegedly perpetrated by Jared Loughner. It represents nonsensical policymaking, pure and simple. Madmen typically do not consult Title 18 of the federal code before taking a gun to a political event, nor are they deterred by the possibility of an additional federal gun charge for their crime on top of the litany of existing federal and state charges addressing such criminal behavior. It is much more likely that King’s law would criminalize the innocent behavior of law-abiding gun owners like Joe Zamudio (one of the Tucson heroes who helped to subdue Loughner) than provide any additional protections to government officials. The impossibility of adequately enforcing King’s bill in open environments also serves to undercut its overall utility when applied to elected officeholders who make frequent public appearances in uncontrolled settings.
But King is certainly not the only political opportunist at work this week. Senator Frank Lautenberg (D-NJ) and Representative Carolyn McCarthy (D-NY) have also proposed banning high ammunition clips in the wake of Saturday’s shootings. The most likely idea on the table is to reinstate two provisions of the assault weapons ban law that expired in 2004. According to the National Journal, Lautenberg and McCarthy “plan to introduce legislation to limit high-capacity clips that allow shooters to fire a large number of rounds without reloading.” McCarthy introduced a bill in 2007, H.R. 1022, that reinstated two provisions of the Clinton Gun Ban (Sections 7 and Section 9). These provisions banned the transfer of large capacity ammunition feeding device and the importation of large capacity ammunition feeding devices.
Regardless of what one thinks about this policy, it remains clear that such provisions would not have prevented the massacre at issue because the alleged weapon used was a Glock and the provisions in existence between 1994 and 2004 would not have banned the magazine used by the killer. Much like the King proposal, this bill smacks more of opportunism than common-sense policy making.
It is inevitable that certain Members of Congress will remain motivated to derive political benefit from this unspeakable tragedy. Level-headed lawmakers, however, should pause and deliberately investigate the facts of this case before adding to the over 4,450 federal crimes already in the statute books and tens of thousands of regulatory crimes already present in the Federal Register. This is not the time to legislate for the sake of legislating. The gun-control ideas being discussed this week would not have prevented the Tucson shooting, nor will they do anything to deter similar attacks in the future. Rather than seeking out opportunities to unnecessarily extend America’s already expansive gun-control laws, legislators should take the time to honor the memory of those lost in Tucson and allow Arizona officials to assess how Loughner slipped through the cracks of its educational, legal, and mental-health systems. At this challenging time, Congress would do best to restrain itself, disavow political opportunism, and avoid the national blame game. Only time will tell if that will occur.