Senate should nix sloppy and non-responsive gun-control legislation


Tuesday night, the Senate released the text of the 80-page comprehensive gun-control package that Senator Chris Murphy (D., Conn.), Senator John Cornyn (R., Texas), and a handful of others have put together behind closed doors. The Senate, by a vote of 64–34, proceeded to debate within the hour and, earlier today, advanced toward a vote on final passage.

Introducing the bill on the Senate floor, Cornyn said, “Since the shooting, my office has received tens of thousands of calls, letters, and emails with a singular message: Do something. Not do nothing. But do something.” And that, indeed, is what he has done. The resultant legislation is sloppy, non-responsive, and rushed, but it’s “something,” and “something” was all it was ever supposed to be.

The most significant changes contained within the bill pertain to eligibility. Were it to pass, it would disqualify any American with an unexpunged juvenile record from purchasing a firearm. Inexplicably — and perhaps by mistake — this rule seems not to be extended to possession. It would also expand the prohibition on Americans who have been convicted of domestic-violence misdemeanors from just those who are married to those who are in “a continuing serious relationship of a romantic or intimate nature” — although, again inexplicably, this prohibition lasts for only five years, after which time such convicts are free to buy as many guns as they wish as long as they have committed no new crimes in the meantime. (Under federal law, all domestic-violence felonies, and some domestic-violence misdemeanors, are permanently disqualifying for gun purchases, irrespective of the details.)

The bill would also create a two-tier background-check system. Purchasers over the age of 21 would be checked against the existing NICS system, exactly as they are now. Purchases under the age of 21 would be subject to an “enhanced” check that, in addition to the standard NICS information, would pull in “criminal history repository or juvenile justice information,” “mental health adjudication records,” and data from the applicant’s “local law enforcement agency.” In theory, the extra information would be managed instantly via NICS, but, because there is no connection between the NICS background-check system and most of those data sources, this provision is likely to lead to long delays for many buyers under the age of 21. In concert, the bill would create two tiers of due process. When investigating purchasers over the age of 21, the FBI would have three days to compile evidence of ineligibility before a sale would go through by default. When investigating purchasers under the age of 21, that window would be expanded to ten days. After ten years, the new system of enhanced checks would be abolished automatically, in the expectation that, by then, all the information it had been pulling in would be placed into the broader NICS database as a matter of routine.

The rest of the bill is limited to funding and to the reiteration or reparsing of existing federal law. Money is made available to the states to help with an array of “crisis intervention programs” that include “red flag laws,” “drug courts,” “mental health courts,” and “veterans courts,” as well as to harden schools. According to the terms of the legislation, the funds it allocates cannot be used to sustain any program that lacks “due process rights that prevent any violation or infringement of the Constitution,” and to obtain it, states are not obliged to have a “red flag” program in place.

Finally, the bill includes language prohibiting the straw purchasing of firearms — which is already illegal — and alters the definition of “Federal Firearm License” in ways that appear, at first glance, to be superfluous.

My primary question upon reading the text of the legislation was “Why?” Senator Cornyn has cast the bill as a response to the atrocity in Uvalde, and yet none of its terms seem to intersect with that incident. As is invariably the case, the shooter did not have a criminal history, a juvenile record, or a mental-health record, and he was not known to police in any disqualifying way. He was not guilty of domestic violence. His gun was not bought in a straw purchase, or by someone abusing a Federal Firearms License. He did not slip through the cracks for a lack of funding.

The most likely answer to my “Why?” is that this ragtag collection of ideas was all that could plausibly emerge from the Senate’s private talks. In and of itself, that does not render all of its provisions worthless, but, when combined with the frenetic pace at which passage is being pursued — among others, Senator Marco Rubio correctly complained that he was being asked to vote to proceed on a bill he could not possibly have read or evaluated — the enterprise begins to seem foolish. Most of the measures contained within the package are either the proper preserve of the states or provided for already within existing federal law, and those that are not — the expansion of the background-check system, and the extension of domestic-violence prohibitions — do not seem to have been properly considered.

The Senate should nix this ill-considered proposal and begin an earnest conversation with the states about the more promising elements within the bill. Some elementary questions must be asked. How, on a day-to-day basis, will NICS interact with the disparate sources of information that it is now being asked to collate? How often, and how accurately, will expungements be reflected in the record? Why are Americans with juvenile records prohibited from buying, but not possessing, a gun? Why are citizens who commit domestic-violence misdemeanors judged too dangerous to buy guns if they are in a relationship, but for only five years after the crime? And is it the proper role of Washington to decide for how long a youthful mistake should affect an adult’s life? It is a rare day on which we find ourselves in agreement with Alexandria Ocasio-Cortez, but she is correct to complain that, without any debate or examination whatsoever, the federal government is on the verge of altering the rules governing juvenile records in all 50 states. Is that the work of great deliberators?

If there are good answers to these questions, they will remain good answers after the July 4 break. In our polarized times, federal laws are rarely amended or repealed, which makes it crucial to get them right on the first try. Senators Cornyn and Murphy have done no such thing.

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