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Sunday, October 06, 2019

Federalism and Guns: Why the Democratic Party should not back a new national gun control law

The Democratic candidates are in a bidding war with each other to see who can back the toughest package of new national gun control laws. Given the justified emotions surrounding firearm fatalities and the efforts at “progressive mobilization” that are goading the candidates to evermore effusive promises of radical change, one would think that this is no time for me to dish out more of my Defensive Crouch federalism. But hear me out. There is a non-frivolous argument that, whatever their merits for whipping up Democrat primary voters, these gun proposals will be, as actual bills and laws, self-defeating. Instead, I urge a program of “gun federalism”: Get rid of centralizing preemption that strips states of power of enact their own gun policies, and protect states from each other by regulating more stringently interstate gun shipments.

Here’s the abstract theory underlying my partisan case for “gun federalism.” The party in power (the “PIP”) has to balance the benefits of pressing for a policy against the risks that such a policy will mobilize the members of the party out of power (the “POOP”). It makes no sense for the PIP to push for a law with modest benefits if that law so outrages the POOP that the PIP loses control of Congress in the midterms, sacrificing the chance to enact other laws with greater benefits. Moreover, the benefits to the PIP of any national law must be reduced by the compromises required to enact that law. One such compromise is that the national law might preempt subnational laws also favored by the PIP. Finally, the PIP should discount the benefits of a national law by the chance that it will be sabotaged by members of the POOP who control subnational governments needed to implement that law.

Judged according to this general logic, the Democrats’ gun proposals are bad bets. They pose high risks of self-defeating preemption clauses, sullen obstruction from local law enforcement, and heavy mobilization of rural gun lovers in swing states. An anti-preemption/anti-encroachment strategy for guns (explained after the jump) might provide much of the same policy benefit at a tiny fraction of the political cost.

1. Why national gun laws present high risks of preemption of state gun laws

It is a familiar point that the price of national regulation is often either simultaneous or seriatim preemption of state laws. In the case of guns, industry and consumer advocates (i.e., the NRA) will demand, as a price for their acquiescence, some preemption clause to suppress the “patchwork” of state laws. Democrats elected from purplish pro-gun states will clamor for some such protection from electoral backlash. (As I have argued elsewhere, anti-preemption canons should force the supporters of a preemption clause to be meticulously plain in defining the preemptive scope of the legislation. But SCOTUS might not be inclined to follow such a canon, so even a weak clause might end up sweeping aside a lot of state laws).

Even if the preemption clause is not contained in the gun bill as initially proposed, the amendment process can get out of hand, as the newly elected Democratic President throws policy priorities overboard to save a legislative trophy. (Think Stupak Amendment). Moreover, the preemption can come later, in tit-for-tat regulation and preemption that is the hallmark of national gun laws.

Will the preemption of state gun regulation actually end up deregulating guns more than the national rules regulate them? Hard to say in advance of an actual bill and an actual Congress. There is, however, a non-frivolous risk of such a net loss of anti-gun regulation.

2. Why labor-intensive federal gun interdiction poses a high risk of being obstructed by Red State sabotage

Suppose the new Democratic Administration manages to pass a law that preempts less regulation than it imposes. To the extent that this new national law is some sort of “labor-intensive” interdiction at point of sale, it could require the cooperation of local law enforcement. In Red States, such cooperation obviously will not be forthcoming. Whatever the merits of such uncooperative federalism in fostering democratic dissent, non-cooperation can stymie labor-intensive gun interdiction policies just as readily as it has sabotaged federal marijuana interdiction. As my colleague Jim Jacobs demonstrated seventeen years ago, the extraordinary proliferation of firearms in the United States makes interdiction (say, through buyback programs) extraordinarily difficult. If the general public and street-level bureaucracy cooperated, as they did in Australia, such a program might be effective. (Or maybe not). But they won't: The USA is far more polarized than Australia, so expect sheriffs and AGs from Red States to grandstand against the law, undermining it wherever they can.

3. What political price will be paid for the nationalization of gun policy?

Suppose the Democrats can pass some sort of national law that actually imposes more regulation than it preempts. Unless that law is a dramatically more effective measure than anyone has any right to expect, the political risk-reward ratio of the law is likely to be lousy. National gun laws are mother’s milk to GOP politicians seeking to mobilize their rural base. The Democrats’ new law will be a rallying cry at midterms in states like Wisconsin and Michigan where Democrats will be vulnerable to rural backlash. Of course, the point of winning elections (ideally) is to make policy — but one chooses one’s battles. If this new gun law is another mediocre, barely-move-the-needle-on-gun-fatalities sort of measure, then is it worth the electoral losses that will frustrate more promising policy measures?

4. Why not try anti-preemption/anti-encroachment “gun federalism” instead?

There is another way in which the Democrats could up-end the gun industry without assuming large electoral risks: Get rid of preemption, and protect anti-gun states from pro-gun states’ encroachments.

Consider, first, the potential gains of an anti-preemption strategy. The most egregious form of such preemption arguably comes from the Protection in Lawful Commerce in Arms Act of 2005 (“PLCAA”). PLCAA prohibits criminal or civil liability against gun sellers and manufacturers for injuries “resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.” 15 U.S.C. §7903(5)(A). It has been a major impediment to holding gun dealers and makers liable for injuries foreseeable arising from the negligent sale of guns (frustrating, for instance, a lawsuit by NYC against gunmakers). The effects of such liability could be immense. (Think Purdue). Moreover, the preemptive effect of PLCAA might be sidestepped with a little statutory interpretation and litigation: PLCAA contains a perplexing “predicate exception” for dealers or makers who “knowingly violated a State or Federal statute applicable to the sale or marketing of [guns].” No one has been able to figure out exactly what this odd phrase means, but, if it includes violation of common-law duties codified in a state statute, then the lid is off a lot of state-law liability. (The Connecticut Supreme Court made a bit of a stir in the Sandy Hook case against gunmakers last spring by broadly construing this exception). Why not have a federal agency make a rule and seek Chevron deference for its interpretation of PLCAA? Or just press for a clarifying amendment in Congress?

The anti-preemption strategy can be supplemented by an anti-encroachment strategy: Strictly enforce limits on interstate gun shipments to prevent guns from states with lax rules from invading states with stricter rules. The so-called “Iron Pipeline” floods states like New York with guns from states like Virginia. Why not strengthen enforcement for bans on interstate gun sales to buyers that violate the laws where the gun is shipped? Amending the Communications Decency Act to limit its preemptive effect on the liability of platforms like Armslist.com would be a good place to start.

The advantage of the anti-preemption/anti-encroachment strategy is that it provides federalism as a political cover to Democratic congresspersons at political risk from pro-gun constituents. Such a congressperson can plead that they are simply letting each state go its own way. That political cover can be enhanced by loud proclamations that the proposed legislation preserves all states’ gun policies. (Imagine, for instance, “savings clauses” preserving pro-gun states’ laws from preemption or short titles like “States’ Rights to Firearms”). Just having the Democratic incumbent president publicly disclaim the more aggressive federal regulations now being proposed in favor of “gun federalism” could diminish the mobilizing power of the gun issue.

And that’s the main point of “gun federalism”: Allow the Democratic Party to be identified with a boring modus viviendi rather than an outrage-inspiring power grab. Federalism is playing defense, not offense — and playing defense keeps one’s opponents calmer. The more that rural voters see a threat to a cultural symbol, the more readily they mobilize. The more that those voters see a boring division of jurisdiction over guns that lets Texas be Texas, the more they may change the channel. No one expects these voters to vote Blue out of love for federalism. Appeals to save guns from regulation mobilize voters. But no one mobilizes for the right to ship guns out of their Red State to a Blue State or preempt laws in states where they do not live. Federalism that takes the form of anti-preemption (“let each state decide for itself!”) and anti-encroachment (“You keep your guns: Just don’t send them to my neighborhood”) might be boring enough to induce gun lovers to stay home on Election Day.

Posted by Rick Hills on October 6, 2019 at 06:53 AM | Permalink

Comments

"According to Cornell, the right to bear arms was bound up with a duty for eligible citizens to serve in the militia: "citizens had both a right and an obligation to arm themselves so that they might participate in a militia." "

Imagine if you said citizens have both a right and an obligation to practice religion. Then freedom of religion could no longer include atheism. Except we know that freedom of religion begins with atheism--that is, freedom of religion begins with the right not to practice religion.

Better yet, imagine if you said citizens have both a right and an obligation to have sex (Lawrence) or have an abortion (Roe). Then there would be no such thing as rape. Except rape does exist, because rights are not obligations, they are THE EXACT OPPOSITE OF OBLIGATIONS.

So if there is a right to keep and bear arms, there cannot be an obligation to keep and bear arms. But in the miltiia, there is an obligation to keep and bear arms, if your superior officer commands it. Therefore there is no right to keep and bear arms in the militia. So it must be a civilian right.

Posted by: Rights are voluntary, not obligations | Oct 7, 2019 11:04:14 PM

"Instead, I urge a program of “birth-control federalism”: Get rid of centralizing preemption that strips states of power to enact their own family-planning policies, and protect states from each other by regulating more stringently interstate birth-control pill and condom shipments."

So every state has to have their own birth-control pill and condom factories? Then why be in the same country as these other states if we can't buy products from them? Suddenly the EU looks pro-business . . .

Posted by: Margaret Singsong | Oct 7, 2019 1:15:50 PM

"Why not strengthen enforcement for bans on interstate newspaper sales to buyers that violate the laws where the newspaper is shipped?"

I don't really think you can call yourselves one-people-indivisible if the people aren't able to read the papers of other areas that might be reporting on things that local papers refuse to report on--say, Hillary's e-mails or Trump's phone calls.

Posted by: Snowbow Coalition | Oct 7, 2019 12:42:02 PM

"But no one mobilizes for the right to perform abortions on people from out of their Blue State or preempt laws in states where they do not live."

Actually, I think every abortion fight now is about states where pro-abortion people don't live. I think most pro-abortion people who fight for abortion in the south come from the north or west (just look at the lawyers and law firms involved). I think the abortion rights movement is a nationalism movement to protect abortion on-demand everywhere.

Posted by: June Medical | Oct 7, 2019 12:36:07 PM

"Such a congressperson can plead that they are simply letting each state go its own way. That political cover can be enhanced by loud proclamations that the proposed legislation preserves all states’ evolutionist policies."

I don't think the anti-creationist people just want to be able to outlaw the teaching of creationism in their state, I think they want evolution and only evolution taught in every state. I think their goal is a national education curriculum. I think they see federalism as a defeat, not a compromise to preserve local heritage, traditions, and cultures.

Posted by: State Powers | Oct 7, 2019 12:30:05 PM

"Strictly enforce limits on interstate gun shipments to prevent guns from states with lax rules from invading states with stricter rules."

Will this be possible while still enforcing the fourth amendment? Will there be full car searches and strip searches at state-border check-points?

Posted by: Mapp Ohio | Oct 7, 2019 12:08:46 PM

"Federalism that takes the form of anti-preemption (“let each state decide for itself!”) and anti-encroachment (“You have your death penalty: Just not in my neighborhood”) might be boring enough to induce death penalty opponents to stay home on Election Day."

I feel like the point of the death-penalty abolition movement is to get it abolished nationwide, not just to make it a state choice.
I don't think they'll be happy until there is no death penalty anywhere, since it's already illegal everywhere they live.

Posted by: Timothy McDonald | Oct 7, 2019 11:25:12 AM

"Federalism that takes the form of anti-preemption (“let each state decide for itself!”) and anti-encroachment (“You have your abortions: Just don’t perform them in my neighborhood”) might be boring enough to induce abortion lovers to stay home on Election Day."

Perhaps, but isn't the point of mandatory public education and universal suffrage that we want people exercising their rights?

Posted by: Susan Beanthony | Oct 7, 2019 11:11:48 AM

"An anti-preemption/anti-encroachment strategy for Miranda, Klopfer, Gideon, Brady, and Apprendi might provide much of the same policy benefit at a tiny fraction of the political cost."

anti-preemption/anti-encroachment (AP/AE) is starting to sound a lot like Jim Crow.

Posted by: Jane Ravenclaw | Oct 7, 2019 11:01:24 AM

"An anti-preemption/anti-encroachment strategy for desegregation, abortion, and gay marriage might provide much of the same policy benefit at a tiny fraction of the political cost."

I don't think democrats would go for allowing states to make their own laws regarding any of these things, or anything else democrats care about. I think the whole purpose of the national democrat party is to get rights to apply nationally--to everyone in all states. The right to travel doesn't mean much if there aren't any other places where your civil rights are recognized.

Posted by: Marshall Harlan II | Oct 7, 2019 10:51:49 AM

"Well, if a state prohibits a good or service, then it is not legal, is it?"

If it's protected by a constitutional right, say the first or second amendment, then the good or service is legal and it's the law that is illegal?

The entire purpose of judicial review, i.e., strict scrutiny, is to strike down such illegal laws that try to regulate or prohibit constitutionally protected goods and services?

Posted by: Miranda Griswold | Oct 7, 2019 10:40:15 AM

Neal Goldfarb,

There are no rights in the miltia or military, there are only orders from your superiors that you have to obey (Goldman v. Weinberger, 1986).
Rights are by definition individual civilian rights, not rights in the militia, collective rights, or state rights.

Posted by: Colonel Joseph Gregory | Oct 7, 2019 10:32:24 AM

Gran hola Heald asks:

“Isn't the whole purpose of being a unified country (and the dormant commerce clause) that we don't believe the states need to protected from each other? But on the contrary, we want a free flow of all legal goods and services in interstate commerce?“

Well, if a state prohibits a good or service, then it is not legal, is it? So, of course, a state can prohibit such a good or service from entering its territory. No one believes that the free flow of goods or services permitted by one state’s law into the territory of a state that prohibits those goods or services is protected by the the dormant commerce clause. The Court has rejected such a view of the dormant commerce clause since the New Deal Court got rid of the “original package” doctrine that made such a hash of dormant commerce clause doctrine between Bowman (1888, I dimly recall) and Clark Distilleries (1918).

Posted by: Rick Hills | Oct 7, 2019 10:32:24 AM

Do you think the political equation might change if it were to become widely known that corpus-linguistic data shows pretty clearly that Roe and Lawrence v. Texas were wrong?

No. Abortion-rights activists want abortion legal no matter what the constitution does or doesn't say. They don't care about "an ancient obsolete document written by dead white male slave-owners".

Posted by: Ginsburgian Ruth | Oct 7, 2019 10:21:52 AM

"protect states from each other by regulating more stringently interstate drug shipments"

Isn't the whole purpose of being a unified country (and the dormant commerce clause) that we don't believe the states need to protected from each other? But on the contrary, we want a free flow of all legal goods and services in interstate commerce?

Posted by: Granholm Heald | Oct 7, 2019 10:17:20 AM

Neal, I doubt very much that the details of constitutional argument matter very much here to voters. Pro-gun voters are suspicious of guns for entirely contemporary reasons and care little about what the Dissenters from the Pennsylvania Assembly wrote back in late Fall of 1787. Nor do they puzzle over the semantics of “bear” versus “carry.”

To my mind, the critical point is to de-escalate cultural conflict through a modus viviendi. Federalism provides a mechanism for such a de-escalating bargain. So far as voters’ attitudes are concerned, the Second/14th Amendments are orthogonal to this point.

Of course, if the SCOTUS enforces the 14th Amendment’s incorporation of the Second Amendment aggressively, then SCOTUS will frustrate that mechanism. As I have noted elsewhere (https://prawfsblawg.blogs.com/prawfsblawg/2010/03/grutterizing-of-the-second-amendment.html ), I think that the SCOTUS’s McDonald foray into subnational gun policy is a really, really bad idea. But good or bad, it does not affect the attitudinal issue that I attempted to address in my post.

Posted by: Rick Hills | Oct 6, 2019 9:21:00 PM

Rick, do you think the political equation might change if it were to become widely known (1) that corpus-linguistic data shows pretty clearly that Heller was wrong (see link below), and (2) originalist gun-rights advocates — despite being aware of that fact (and despite supporting corpus linguistics) — have not challenged the corpus analyses?

https://lawnlinguistics.com/corpora-and-the-second-amendment/

Posted by: Neal Goldfarb | Oct 6, 2019 9:00:00 PM

Important. But we couldn't understand yet, how such proposal, shall deal basically, with the legal, constitutional, philosophical issue concerning the interpretation or the very existence of the second amendment. You have ignored simply, the preamble or findings of the " Protection of lawful commerce in arms " mentioned by you. For it does state clearly, I quote:

(a) Findings

Congress finds the following:

(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

And:

(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law.

End of quotation:

So, the right shall not be infringed. All those proposals of democrats, are senseless and unfounded according to them. So:

You need to engage rather, in philosophical debate. What counts more ( apparently):

The right for self defense, the right to bear arms V. the right of people to life ( suppose ). What takes over, that what counts ! For:

It is whatsoever, a national issue, not state issue. A good democrat, must act as if he holds the right solutions or perception for the benefit of the whole nation, and vice versa concerning the republican. Otherwise,why not to imply such proposals as yours, on the " Fourth amendment " or others ?

What you ask here, is the Republicans to act not as republicans, and vice versa Democrats, and both, to ignore federal constitution ?

Thanks

Posted by: El roam | Oct 6, 2019 9:21:23 AM

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