The politics of gun control is undergoing a fundamental change. Tomorrow night, President Obama is set to address gun control in his State of the Union address, with the presence of former Congresswoman Gabrielle Giffords and Captain Mark Kelly adding a personal dimension to his push for action. Later this week, Obama will return to Chicago to bring the case for gun reform to a city whose South Side has been ravaged by handgun violence.
Congress is listening like never before. Senator Joe Manchin, one of the most conservative Democrats on guns, now says that he’s serious about gun control. A ban on high-capacity magazines and universal background checks stand racetrack odds of passing, which would have been unimaginable even a few months ago. While the exact package isn’t clear yet, gun control at the federal level is poised to succeed.
With this writing on the wall, Republicans are now turning away from the feds and going to the states to advance their agenda. In Arizona, the state legislature may consider a bill to prevent federal government employees from enforcing gun laws. State Representative Steve Smith, the sponsor of the bill, had a clear message: “Stay out with your federal regulations you’re going to impose on us.” Similar bills are underway in Mississippi, South Carolina, Texas, Utah and other states. Some sheriffs in Montana have even said they wouldn’t enforce new federal gun regulations they disagree with.
While these bills are undoubtedly unconstitutional, they are also disingenuous. For the past twenty years, the pro-gun lobby has been willing to undermine local approaches to gun policy when it suited their objectives. Now that the pro-gun lobby no longer dictates national policy, it is desperately trying to repackage its extremism and sell it as federalism.
Not so long ago, cities across the country were leading the fight to curb gun violence. In the late 1990s, for instance, a coalition of thirty cities and counties brought lawsuits against the gun industry demanding that manufacturers install safety devices on weapons.
Without hesitation, the NRA and pro-gun Republicans ran to the federal government for redress. The Protection of Lawful Commerce in Arms Act of 2005 banned cities and states from suing gun companies in all but a few circumstances. This was an unprecedented exertion of federal authority against the ability of cities and states to enforce product liability laws. When President George W. Bush signed the bill into law, Wayne LaPierre said that this was the “most significant piece of pro-gun legislation in twenty years.” No whining then about federal power; the NRA was willing to use the power of the federal government to get a special protection for the gun industry.
Ultimately, the law forced the courts to throw out the suits from the local governments. Judge Brook Hedge of the DC Superior Court dismissed the District of Columbia’s lawsuit against gun manufacturers. She lamented that while assault weapons have “pernicious consequences for the health and safety of District residents and visitors,” she had no choice but to dismiss the lawsuit because Congress “has trumped local law by passing legislation to protect the profits of such manufacturers.”
As cities sought to protect themselves from the onslaught of gun violence, the NRA pushed court cases that overturned the power of a city to ban handguns. Rather than siding with the right of a locality to determine its own gun policy in light of specific needs of a city, the NRA pushed a one-size-fits-all approach. The NRA supported the McDonald case that eliminated the ability of cities and states to ban specific classes of guns. The NRA also vowed after the decision to fight against “defiant city councils” who would try to create gun policies tailored to the needs of their communities.
In a direct assault on states’ rights, pro-gun Republicans have pushed right-to-carry reciprocity legislation that would force a lowest common denominator concealed carry permit. The House version of the legislation required all states to recognize concealed carry permits issued in other states. For Representative Trent Franks, a sponsor of the bill, it was just the same as how “there are some states that have stricter driving laws than others.” In reality, the bill would have forced states to allow concealed carry permits in their borders without their consent. Even one Republican came out against the bill as an assault on states’ rights.
The NRA supported using congressional power to undermine local gun policy because, as NRA-ILA Executive Director Chris Cox said, “Congress should recognize that the right to self-defense does not end at state lines.” The bill passed the House of Representatives, but two similar bills didn’t receive a vote in the Senate. The NRA said it would “work harder” to make it into law.
The NRA and the pro-gun lobby have spent the past two decades using federal power to gut local attempts to construct sensible gun policies. Today, cities and states are left with little power to enforce gun policies. In effect, the pro-gun lobby has made the federal government the primary mover in shaping gun policy today.
Now that the Congress is finally taking gun control seriously, it should come as no surprise that the NRA and its allies will shift their focus to the states and try to dress up their extremism as a virtuous defense of federalism. The president and Congress should ignore the NRA’s shrieking to protect states’ rights, as it was the one who set the precedents and left us with no other way forward.