Glenn Reynolds: “If you care about civil rights for minorities, gun control is not the answer.”

Writing in USA Today, and echoing the words of George Washington Law Professor Robert J. Cottrol:

Cottrol discussed a number of such cases, including that of Melroy Cort, a double-amputee Iraq veteran who in 2006 was traveling to Walter Reed Army Hospital for treatment from Ohio. He was charged with possession of a pistol not registered in the District of Columbia (though he said he had a permit in Ohio), a felony that would not only have sent him to prison, but would have cost him his veterans’ benefits. Although, as Cottrol notes, prosecutors in the DC Attorney General’s office had discretion to drop the charges; they instead threw the book at him.

Fortunately for Mr. Cort, he was saved by jury nullification, but not everyone is so lucky.

[Prof. Cottrol’s] point: Strict gun laws with stiff penalties are just another example of the overcriminalization that has led to mass incarceration in America, particularly among minorities.

Read the whole thing. I’m glad this point is being made, because this has always been the unintended consequence of “enforce the laws on the books,” which I’m noticing NRA is retreating to again. Prof. Reynolds goes on to reiterate his proposal for federal civil rights legislation that would set the maximum penalty a state can assess for possessing or carrying a firearm on the part of someone not prohibited under federal law to $500. I think it’s a great proposal. The only downside I’d worry about is that the anti-gun states would start passing (more) strange and unusual gun regulations, seeing gun owners as a cash cow to be milked. But I’d prefer that situation to the current status quo that exists in those states.

Beyond that, I would like to pursue under the 14th Amendment a complete federal preemption on state and local regulation for the manufacture, sale, and possession of firearms anyone not prohibited under federal law from possessing firearms. Basically, if you’re not a prohibited person federally, you can buy and possess anything that’s legal under federal law. But we’re a long way from something that radical.

21 thoughts on “Glenn Reynolds: “If you care about civil rights for minorities, gun control is not the answer.””

  1. “Beyond that, I would like to pursue under the 14th Amendment a complete federal preemption on state and local regulation for the manufacture, sale, and possession of firearms anyone not prohibited under federal law from possessing firearms. Basically, if you’re not a prohibited person federally, you can buy and possess anything that’s legal under federal law. But we’re a long way from something that radical.”

    Your biggest opponents for this will come from your own side. Most state FIP statutes are less broad than the federal one. People in those states want the federal standard to loosen up.

    1. That wouldn’t change anything, because the federal one is still controlling. If the feds loosened their FIP regime, it would loosen for the states as well. It’s not like you can legally own a gun in those states if you’re prohibited federally under current law. Preemption wouldn’t change anything for states with a more relaxed standard.

      1. In the absence of state law stating someone is prohibited, state cops are much less likely to make a stink over someone. It literally becomes “a federal issue” and you can bet absent mitigating issues, the feds won’t prosecute.

  2. Here’s the money quote: “And Cottrol pointed out, states like New Jersey and Massachusetts are actually harder on people caught with unregistered guns than they are on domestic abusers and child rapists.”
    There’s something SERIOUSLY wrong in those states. The punishment needs to fit the crime.

  3. Enforce all the laws, consistently and thoroughly.

    … and have a lot fewer, better [more clearly and narrowly] drafted laws.

    The two are both* necessary for a decent rule of law – and they reinforce each-other.

    After all, if we actually did enforce the laws, cops would get sick of wasting their time on stuff they know is pointless, and people would make such a stink that there’d actually be political capital in fixing the laws.

    Likewise, a smaller, actually targeted and meaningful set of laws makes enforcing them both more rewarding [cops like feeling like they’re doing good stuff!] and easier and more popular.

    Everyone wins.

    (* Without the former, we have arbitrary and capricious enforcement, mostly against disfavored groups or people the cops/DAs want to “get”.

    And without the latter, everyone’s a criminal, all the time.)

    1. Quite. Especially on the clarity and narrowness of existing laws; the vagueness and overlap in current law is half the problem.

      But also, if the authorities aren’t going to enforce the existing laws, then those laws shouldn’t be on the books.

      Case in point: Oregon’s new “universal background checks”. Most of the county Sheriffs have explicitly said they won’t enforce it, and many county commissions have also voted to nullify and/or not enforce it, virtually guaranteeing that nobody will ever be charged, let alone convicted, of violating that mess of a law. Why, then, is it allowed to remain?

      This, among other things, is why I believe every new law, especially criminal statutes, should carry a sunset clause. An automatic nullification clause (i.e. absent enforcement and/or convictions, it’s automatically removed) would be nice, too.

      1. This doesn’t just apply to universal laws. It is my understanding, for example, that various governments don’t like to enforce straw purchase law violations, because the straw purchasers are typically abused girlfriends of drug pimps, or other sympathetic characters.

        If this is the case, then background checks are completely useless!

  4. It would seem to me universal reciprocity Might be a doable first step along the way. Perhaps if we get an (R) in the Whitehouse. I would do a few changes to those growing mold in the US congress. Such as language, If you can carry it in your home state you can carry it in any state. That would put a stop to the nonsense in states like NJ.

  5. As horrible as cases like the Shaneen Allen case are, I wonder if it’s really true gun control laws are enforced more stringently than ordinary criminal laws.

    I’m thinking of the hundreds of thousands, if not millions, of gun control law violations which are never even prosecuted, even though they easily could be. Such as violations of the Federal background check, or prosecuting people who failed to register their so-called “assault weapons” in states like California, New York and Connecticut.

    1. There is a lot to be said for the sea turtle defense. But that doesn’t meant that sea turtles don’t sometimes get eaten. I’m betting there are a lot of people who get away with smoking pot their entire lives without having an encounter with law enforcement. But that’s not to say lives aren’t ruined by the drug war.

      1. Oh, don’t get me wrong. I agree with the Reynold’s opinion article in whole, and I think it is brilliant logic by which to advance the cause of gun rights. I was just concerned about exaggeration.

        I am sensitized to the typical B.S. our enemies push, and I am convinced that B.S. tactics have hurt them in the long run. I don’t like it when our side misstates facts or exaggerates, because our side should stand for truth and justice, to contrast how our enemies stand for lies and injustice.

  6. Cottrol is a George Washington University professor. NOT G’town. (he was speaking there).

    Please change….Go Colonials!!

  7. “But we’re a long way from something that radical.”

    You misspelled reasonable.

  8. Reynolds’ conclusion — “Want to reduce crime? Punish criminals. Don’t lock up peaceable citizens on a technicality.” — would make perfect sense … if the goal of “gun control” were “reduc[ing] crime”.

    1. While it isn’t necessarily the goal of Bloomberg or Hillary! or Obama to reduce crime, it’s the end-goal of most Americans. This is why Bloomberg et al appeal so much to “We need to reduce crime!”.

      It is also why they are vulnerable on the subject. If a gun law passes, and it doesn’t reduce crime (and may even increase it) then it doesn’t make sense to listen to these types yell “We need even more laws, because crime just keeps going up!”

      On the other hand, if a peaceable citizen is arrested on an arbitrary gun violation, then it’s a lot harder to justify “Throw the book at them!”, especially if the same judges, prosecutors and governors demonstrate leniency on obviously worse crimes.

  9. While the NRA does retreat to the “enforce the laws on the books” mantra regularly, I do have to give them credit for starting to spread the word when the Melroy Corts and Shaneen Allens of the world get jammed up due to ridiculous gun laws, though I think they can do a better job at it. I think it’s mainly because the NRA has to walk the fine line of having the back of rank-and-file LEOs while also supporting minorities who want the freedom to defend themselves in urban areas.

    Turning this into a civil rights issue for ALL Americans, regardless of skin color, is what is really going to strike fear in the hearts of the antis. They love claiming we’re racist, lets show them who the real racists are when we’re the ones going to bat for peaceful minorities facing felony sentences because of the garbage laws they support.

    1. Amen!

      There’s no better platform to get that message out than the NRA, and you’re correct in that they can support both sides with that message : black and blue!

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