In the wake of the tragic lives lost at Robb Elementary School in Uvalde, Texas, it is understandable that there is an overriding sense that Congress must act to protect innocent lives. In the face of any unspeakable tragedy, there is a natural, human impulse to seek to do anything in your power to prevent such devastation in the future. The new bipartisan gun control legislation will do little to prevent another horrific tragedy like the one in Uvalde and in the process opens the liberal dream of universal gun background check and registration.
I hear the calls that we must do something, and that doing nothing ignores the problem we are facing. However, doing something that will not solve the problem or arguably affect the issue in a meaningful way is not only wrong—it’s cruel. When we make a change simply for the sake of being able to say we made a change, what actually happens is that the problem remains unresolved, but many times unintended consequences arise. These unintended consequences could be prevented by taking a step back and spending more time analyzing the solutions being proposed.
A bipartisan group of Senators, led by Senators Chris Murphy (D-CT) and John Cornyn (R-TX) introduced legislation that was fast-tracked in the Senate with very little debate, no Committee hearings, and not a single Committee mark-up. In the rush to get something done, the Senate completely abandoned the formalities of regular order, instead negotiating and drafting the final bill behind closed doors. It’s not only the rushed process that’s the problem—it’s also the fact that not all Senators had an opportunity to debate and amend this final package. In the end, that lack of scrutiny will cause problems not for the next criminal who chooses to commit horrific acts of gun violence, but for law-abiding citizens who are simply exercising their Second Amendment rights. After the rush in the Senate, the House did even less. They brought it straight to the floor and passed it, and it is now law.
The legislation does include provisions that would likely receive near unanimous, or almost unanimous, support. These provisions include: more money for specialty courts that deal with mental health issues and family courts designed to help families while still holding criminals accountable; and money to protect and harden our schools, which almost every after-action report from a school shooting has shown would have actually prevented the loss of life.
The problems with this bill, however, outweigh the solutions and should have more than just perfunctory debate on the floor of the U.S. House and the U.S. Senate. The provisions providing state funding for so-called “red flag laws," opening of juvenile records for background checks, changing the definition of gun dealers, and the straw purchase provisions do little but have the potential to harm lawful gun owners.
I find it interesting that there is no outcry from either the Left or the Right about the lack of specificity in what constitutes “due process” when it comes to providing state funding to implement red flag laws. This undertaking requires thoughtful consideration to ensure the proper protection of law-abiding citizens’ Second Amendment rights—not just a line about the Constitution. I am amazed that so many of my former colleagues who have worked diligently on criminal justice reform would be willing to allow the opening of juvenile records for a background check—including mental health records. The juvenile system is not like the adult system, and it should be treated with different standards. Once again, the answer may have been found with a little due diligence check. But who needs due diligence when the sole objective is to pass a bill quickly?
Another provision worth serious concern is the language regarding straw purchases. It’s simply not true that prosecutors cannot make these cases. The individual who purchases the gun attests that they will use the firearm for themselves. If they in turn give it, or sell it, to another individual who cannot own a firearm, that is already barred by law. This goes back to the sole issue—these senators believe that we must pass new laws to accomplish something, even if those laws already exist.
The final and most disturbing change is one that opens a back door to universal background checks. The reality of universal background checks is that they want to hold private sales to the same standard as the licensed gun dealers. In the proposed bill, the authors have changed the language of the current statute from reading “principal objective of livelihood and profit’’ and inserting ‘‘to predominantly earn a profit.” This may seem like an insignificant change. However, anyone who now sells a single gun and makes a profit can be considered a gun dealer subject to all the restrictions and liabilities that go along with that distinction. This is extremely concerning as it would have a dramatic effect on lawful individuals who occasionally sell a gun. It appears that this was put in not to solve the current problem, but to implement a policy that the gun control community has been unable to achieve through normal legislative means.
As I stated many times while I served in Congress and dealt with these issues: what makes you feel good does not always heal you. In the end, this bill will not do what the authors say it will. But what it will do is take another bite out of our Constitutional rights. I believe that is a bad trade.