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.