“Doing Something” Has Real Consequences

David Keene served as president of the National Rifle Association 2011 to 2013.

Texas Senator John Cornyn, a former judge, justifies his role in putting together and passing a package of anti-Second Amendment laws signed into law by President Biden, saying that he was responding to calls to his office demanding that he “do something” in the wake of the recent school shooting in Uvalde, Texas.

So that's what he did. He sat down with progressive anti-gun colleagues who also wanted to “do something.” 

See Also: Senate Passes “Unconstitutional” Gun Bill – House Republicans Pledge to Fight It

The “something” they did will do little if anything to prevent future school shootings but will give government additional ways to harass law abiding gun owners and allow Senators who voted for it to assure voters that they have indeed “done something.” 

Had they waited a few days for the Supreme Court Justice Clarence Thomas' majority decision to rule in New York Rifle & Pistol Association v Bruen they might have had second thoughts about what they agreed to – as much of their package may not survive the “strict scrutiny” restrictions on firearms sales, possession and use they will now have to pass to be determined constitutional.

Analysis of the gun control “deal” Senate Republicans and Democrats made will focus on the so-called “Red Flag” laws that have become flavor of the week – favorites of politicians and gun control activists – but are unlikely to do much to reduce either gun crime or school shootings. 

Like many gun control proposals, they sound good in concept. Who would disagree with the wisdom of disarming those in the midst of a psychic break or mentally unhinged and threatening to harm themselves or others? 

As with much else, however, the devil lurks in the details. What sort of threat justifies suspending one's rights – even temporarily? 

Who gets to determine whether an individual is dangerous enough to trigger such action? 

Can the law be easily abused – and if so, what remedies exist to avoid or at least minimize such abuse? 

And what happens when the crisis triggering the seizure of one's firearms has passed? 

I was asked while I was serving as an NRA officer some years ago when such proposals were first gaining popularity as a way of getting guns out of the hands of the truly dangerous if there were any circumstances where the NRA or other pro-Second Amendment organizations could support such a law. I responded that such a proposal, designed narrowly to accomplish its goal and incapable of being abused by those administering it, might well win approval – but the questions above had to be answered satisfactorily and any such law would have to include real due process protection for anyone whose rights might be threatened.

Since then, nineteen states and the District of Columbia have enacted red flag or what they call “Gun Violence Restraining Orders.” Some are better than others, but few provide real due process protection, and many allow too many people to trigger police action. 

See Also: Red Flag Laws – and Why They Should Scare Us All

Such laws have been adopted by individual states – from California to Indiana and Florida – and are enforced at the state and local level. President Biden and Democrats in Congress wanted a federal “one size fits all” law enforceable in federal courts – and executed by federal law enforcement officials, but at least Senate Republicans forced Democrats to abandon this approach or even a nationwide mandate requiring states to pass such laws in favor of incentives that will “encourage” states willing to pass them to do so. 

A few more states might, but many of those who don't have red flag laws now aren't likely to do so. And they did manage to make a stab at requiring “due process” as a part of the red flag laws the federal government will encourage the states to pass under the “Bipartisan Safer Communities Act”, but anyone who believes the law cannot or won't be abused must live in a fantasy world … or the United States Senate.

Senator Cornyn and his colleagues may think they've passed a law that will be executed fairly and narrowly to target only those who represent a real and immediate danger to themselves or others, but most Americans don't live in their world. 

A Trafalgar poll released just before the Senate vote found that more than 72% of Republicans and 52% of Independents believe such laws have the potential to be abused. Perhaps those numbers suggest why Cornyn was so warmly welcomed to his own state's Republican State Convention when his fellow Texans found out what he was up to as he negotiated the package with his Democratic colleagues last week. It could have been worse, of course, and since Democrats are vowing that what passed is but a step in the right direction – it probably will get worse.

Democrats wanted to outlaw anyone under twenty-one from buying a gun. That is off the table and the compromise instead promises a more extensive background check of potential young gun buyers which will depend on the government getting access to their juvenile and medical records. This sounds sensible given the fact that most school shooters fall into this category, and a few may have been prohibited from legally acquiring a gun if this could be done but getting access to these records is likely to be far more difficult than anyone suspects. Not only do state requirements limiting access to such information vary widely, but the proposal will stir up juvenile rights advocates and mental health advocates along with their elected allies. 

The package includes other provisions, including a provision to allow seizing the firearms of one accused of abusing someone with whom the gun owner is in a long-term romantic relationship – and prohibiting the guns' return for five years and increases penalties for what are known as “straw buyers.” Buying a firearm for someone else is already illegal and one of the least prosecuted firearms related crimes, so increasing the penalties isn't likely to have much impact.

Still, the belated recognition by Congress of the importance of enhanced school security and the way in which a flawed mental health system has allowed those who even under existing law shouldn't have access to firearms is good news. 

Senate Republicans didn't do badly in getting Democrats to take some really bad ideas off the table, but the substance of what they agreed to will put legal gun owners at risk without doing much to deter people like the Uvalde school shooter who bought his gun legally, had no criminal or mental health record and would not have been “caught” by any of what the Cornyn gang has written into law.

 What's worse is that the proposal puts gun owners and the Second Amendment on a slippery slope and slippery slopes are dangerous places to be. The final version of the law may not seem so bad – but how the law is interpreted and implemented by an Administration solidly opposed to the Second Amendment is still in question. 

These Senators don't believe they've “sold out” gun owners as some are claiming – but the final judgment on the political wisdom of their action will depend on what comes next – and whether they can persuade gun friendly voters of the reasonableness of what they've wrought. 

That may not be easy. If they fail to make their case convincingly, they will pay a heavy price at the polls in exchange for little more than the opportunity to stand in front of the cameras with their anti-gun colleagues to claim they've “done something.”