By Brian
When I was a college kid I took a judo class to satisfy my gym requirement. Today, I’m too many years removed from college and I can’t perform any the moves or remember most of the terminology. But one concept from judo has stuck with me: sometimes you can’t just out-muscle your opponent. Sometimes you’re going to get thrown and that’s when you need to use your opponent’s strength and energy against him. The pro-2A crowd needs to learn that lesson right now, because it may be that the current situation presents an opportunity for us to actually make some gains, particularly at the state level, instead of just minimizing the (sadly almost inevitable) losses . . .
I’m not talking here about what things should be like, or how the meaning of the Second Amendment should be read. True, we shouldn’t be having this conversation at all, but the reality is that the bulk of the country — and at least five Justices on the Supreme Court –don’t agree with us that all these gun control proposals are invalid on their face and bad ideas to boot.
With that caveat out of the way, here’s how I see things shaking out in the Senate (barring unforeseen events):
· The Senate is unlikely to support a ban on scary looking guns “assault weapons”
· The Senate will support magazine restrictions, probably capping capacity at 10 rounds
· The Senate will support grandfathering pre-existing magazines
· The Senate will support universal background checks and require FFLs or law enforcement to do the checking
· There will be some action mental health and medical records that is interesting and important but, come on, we want to talk about the guns
· There will be at least some support for these measures from red state Dems and “moderate” Republicans . . . some earnest and some based on perceived political need which, combined with the support of the rest of the Democrats, means these measures will pass in the Senate
So this bill gets to the House. Sadly, I don’t see how something that makes it that far doesn’t get passed there, too. Moderate GOP House members are no doubt worried that if they don’t do something. They’ll be targeted by the Obama/Bloomberg et al. bloody shirt brigade in the next election, causing them to lose their seats and the Dems to retake the House. And if the Democrats retake the House . . . *shudder* . . . .
So where does that leave us? Something is likely to pass and this is where the opportunity lies. If the GOP is smart enough to not just hunker down and get beaten up for “doing nothing.” But what should the GOP do to keep their moderates in line and not give Pelosi a tool to retake the majority?
The House GOP should take the demand for something to get passed and turn it around on the grabbers by proposing . . . magazine limits.
Wait! Before you hit the back button or leave a scathing comment, hear me out (you can leave the scathing comment later). This proposal operates under the assumptions laid out above, which means we’re already in a bad place. If our position is stronger by the time the House has to act, toss this in the trash. But assuming there’s sufficient political pressure that something has to give, there’s a lot to be said for deciding what gives and how.
If the House GOP counters the Senate bill with a magazine limit of 30 (per Prof. Kopel, probably the upper bound of what this Court would find protected), and makes a big deal of getting rid of those nasty 100-round drums, they can say to the American people that they did something. And red state Senators can accept a magazine ban without having to take rounds out of anyone’s pistol and almost no one’s rifle.
As for that “universal” background check, I’m in the minority here at TTAG in that I think you could design a “Universal Background Check System™” (UBCS) that’s not particularly prone to abuse by the government and would be at least as effective as the systems currently proposed (that is to say: not very). If we can dodge this one entirely, great. But to the extent politics demands a UBCS, better the House GOP design one — something that doesn’t rely on FFLs and would be less subject to being turned into a registry — than be pressured into whatever abomination is likely to come out of the Senate.
Rather than just saying “no” until they’re beaten into saying “yes” on the opposition’s terms, the House should talk about how their new proposal embraces the changes in technology that have happened since the 1990s: smartphones, the cloud, the fact that there is no need to require an FFL to run a background check when we have online background check companies out the wazoo.
Then the House could go to the Senate with the argument that the House’s system “solves” the problem without all red tape, inefficiency and potential for abuse that the Senate surely just overlooked and didn’t mean to include . . . right? Let Schumer and Feinstein defend their system over a newer, more innovative and less-dangerous-to-gun-rights version and see how that goes over with the public.
Now I’m sure you’re wondering where the gains I promised earlier come in. Here’s the kicker (sorry for burying the lead): the House should also demand that this bill — with its 30-round mag cap, no “assault weapons” ban and (if necessary) less-prone-to-abuse UBCS — preempt state law. It replaces New York’s law; it replaces California’s law; it is . . . the law.
I don’t see much risk here since federal law is already the ceiling on the practical exercise of our rights. States can (correctly) complain that gun laws are too restrictive, but barring some pretty dramatic action, there isn’t a lot they can do about it until the Supreme Court changes its mind on certain things. If the federal law is the ceiling on our rights, why shouldn’t it be the floor as well?
Yes, those of us in free(ish) territory would lose the ability to buy new 50 round drums (which stinks), but we will likely lose that anyway. This way, our brothers and sisters in the occupied zones would no longer face prison for having a standard capacity magazine. In addition, it will make it easier on the gun companies because they won’t lose lucrative markets or have to deal with all the different state versions of rifles and magazines.
Complaints from the Congressional gun-grabber caucus that states should be able to set their own more stringent limits could be met with a the response that other states should then also be able to enact their own less restrictive laws. This will either spark a healthy debate on the virtues of federalism or (more likely) put an end to the discussion.
Here’s another nice feature of this: it may turn the biggest grabbers into the reason nothing really offensive gets passed. While many GOP and red-state Dem Senators will be happy to support something, anything, that contains the words “magazine limit” and gets the issue off their radar, Schumer, Feinstein, Durbin and the like, faced with the elimination of their draconian homestate laws, may refuse to go forward, providing the perfect excuse for the whole thing to come crashing down. And if that happens, it will be the Republicans in the House who can say they met the grabbers half-way, but that apparently wasn’t good enough.
In a perfect world we wouldn’t have to deal with any of this. But we don’t live in that world, so we may as well try to do the most with world we have.