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Sizing Up the Gun Bill

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Sizing Up the Gun Bill

The Senate’s compromise legislation would likely have a modest impact—on both firearms violence and Second Amendment rights. June 22, 2022
Public safety
Politics and law

In the wake of the horrific Uvalde shooting, Senate negotiators have managed to hammer out a compromise on gun control: the Bipartisan Safer Communities Act. It seems to have filibuster-proof support in that chamber, and the measure will likely pass the Democratic-led House as well, giving both parties an accomplishment to point to heading into the midterms.

But what would the bill actually do to stop gun violence? Here’s a summary of the main provisions and the pros and cons of each.

More intensive background checks for 18-to-20-year-olds. Federal law requires licensed gun dealers to conduct background checks on their buyers (though in many states, individuals selling from their private collections do not face this requirement). These checks should turn up any records indicating that the buyer has been, for example, convicted of a felony, committed to a mental institution, or dishonorably discharged from the military.

In light of recent shootings by young individuals who bought their guns from dealers, the bill tightens some rules regarding these checks. Juvenile records, previously excluded from checks (except where state law says otherwise), will now disqualify buyers, and customers under 21 will face heightened scrutiny, including calls to various agencies to hunt for problematic information—a process that can take up to ten business days. Democratic senator Chris Murphy of Connecticut has touted these investigations as a de facto “cooling off” period.

As Stephen Gutowski of The Reload points out, while the bill makes it illegal to sell a gun knowingly to someone with a disqualifying juvenile record, it does not actually bar such individuals from possessing or trying to buy guns.

Money for states to fund red-flag laws and other initiatives. Under a red-flag law, police, family members, and school officials can report troubling behavior and get a court order barring an individual from gun ownership. These laws have been touted as a way to prevent mass shootings, considering how many perpetrators gave off countless warning signs before attacking.

As my colleague Charles Fain Lehman has shown, however, the effect of these laws seems to be marginal. They’re just not used enough to put a dent in overall homicide or suicide numbers, though they can play a big role in individual cases.

The bill tries to address some common criticisms of red-flag laws. For instance, the money is available only when states’ laws contain due-process protections and punishments for those who abuse the system with false complaints. Whether these restrictions have teeth remains to be seen.

Under the bill, states that don’t want red-flag laws can still get federal funding for other initiatives, such as mental-health and drug courts. Another part of the bill creates a “clearinghouse” for research and grants for school safety and security, reflecting the approach many conservatives prefer. Even more money is available for violence-intervention programs.

There is still the federalism concern, however, inherent in using federal money to subsidize state policy decisions.

Closing the “boyfriend loophole.” Under current law, felons are barred from owning guns. So are those convicted of domestic-violence misdemeanors—but only if they lived with, were married to, or had children with their victims. Violent misdemeanors against other intimate partners don’t count; thus, the term “boyfriend loophole.”

The bill expands the prohibition to include misdemeanor violence against “serious” romantic partners. In deciding whether a given relationship counts, the bill instructs officials to consider the relationship’s length, nature, and “frequency and type of interaction.” The new prohibition will last only five years, however, so long as the perpetrator doesn’t acquire a second similar conviction.

The obvious reason for this rule is that people who commit violence against intimate partners shouldn’t have guns, even if the violence only rose to the misdemeanor level (or was pled down from a felony). The National Rifle Association has consistently opposed taking this step; its Institute for Legislative Action recently argued that it could be applied far too broadly. In a 2014 case, the Supreme Court ruled that the current domestic-violence prohibition on gun ownership requires only “the degree of force that supports a common-law battery conviction—namely, offensive touching.”

Anti-trafficking measures. It is already illegal to pass a background check on behalf of someone else who can’t (such as a fellow gang member with a felony conviction) or knowingly to traffic guns to criminals in other ways. So the new bill’s provisions on these topics are basically redundant in terms of what they prohibit. They do provide new, more explicit language for prosecutors to work with, backed by stiffer penalties.

These are modest measures. They will neither drastically reduce gun violence nor greatly curtail Second Amendment rights. They could stop some violence on the margins, though—at the cost of some taxpayer money, some inconvenience to young legal gun buyers, and some potential for abuse.

Photo by Anna Moneymaker/Getty Images

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