The Senate Gun Bill Is Terrible


Protesters calling for gun-law reform march in downtown St. Louis, June 11.


Jack Myer/Associated Press

When mass shootings such as Uvalde happen, a rallying cry emerges for Congress to do something—anything—to prevent such tragedies in the future. On Tuesday senators introduced the Bipartisan Safer Communities Act—their effort to do something. But when your sole rallying cry is to do something, the thing you do may be worse than the status quo. The Bipartisan Safer Communities Act is a terrible bill, and in its current form, it ought to be defeated by a bipartisan political coalition of Congress.

Liberals should hate the bill because most of its gun-control provisions are antithetical to their criminal-justice reform agenda. The law expands the categories of those to whom it is unlawful to sell a gun or ammunition to include anyone convicted of a felony as a juvenile. This will ensnare many because the modern definition of a “felony” is exceptionally broad and includes offenses that aren’t particularly serious. The bill also changes the federal prohibition on selling firearms to those who have been involuntarily committed to a mental institution. While it excludes involuntary commitments before age 16, the bill significantly strengthens the enforcement of the prohibition against those involuntarily committed between 16 and 18.

We should be cautious before we make it impossible for children to live normal adult lives. As liberals often point out (particularly when the death penalty is involved), children and teenagers lack maturity and impulse control. If this bill becomes law, a 12-year-old who joyrides in a car may find that he may never be allowed to purchase a gun or ammunition. Although liberals may not cry at the thought of fewer people being able to own guns, they should be concerned. A gun ban for youthful indiscretions means that these juveniles will become unemployable as adults in many security, law-enforcement and military positions that require firearm possession. And this ban will affect them no matter how much time has passed since their juvenile convictions.

The gun ban would have significant racial and socioeconomic disparities. Wealthy communities will find ways around the gun ban for their children: having robust pretrial diversion programs that don’t result in technical convictions, accessing pardons through the political process, and hiring lawyers to expunge convictions. In poorer communities, children will simply be forced to take pleas that will forever alter their futures. The same goes on the mental-health side: Wealthy parents can seek voluntary treatment for their children in circumstances that may cause poorer families to seek involuntary commitment. The bill also raises the maximum prison term for unlawful firearm possession from 10 years to 15, and these regulatory offenses—as liberals often complain—disproportionately affect poor and minority communities.

Conservatives and gun owners should hate the bill, too. Gun owners who have committed juvenile indiscretions will find that they are no longer able to purchase firearms or ammunition. The bill also has strange technical defects. It prohibits the sale of guns and ammunition to those convicted of juvenile offenses, but it doesn’t explicitly ban possession—a loophole that someone will clamor to close later. For adults who had involuntary commitments before they were 16, the reverse is true: The bill allows firearms to be sold to them, but it doesn’t decriminalize their possession of a firearm.

The most significant provision in the bill is the prohibition against firearm possession by those convicted of a misdemeanor violent crime against a dating partner—closing the “boyfriend loophole.” But the senators who negotiated this bill evidently couldn’t agree on the definition of a dating partner. They define “dating relationship” as a “relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.” But relationships come in all forms, and this definition provides little guidance. The senators provided three criteria for consideration: (1) the length of the relationship, (2) the nature of the relationship and (3) the frequency and type of interaction between the people involved in the relationship. This means that a “continuing serious relationship” will be some function of quantity of dates, length of time and physical intimacy. But these vague factors don’t provide fair notice and are susceptible to inconsistent application.

By failing to define “dating relationship” adequately, Congress is effectively delegating the critical question of who falls within this ban. To whom it is delegating the hard details remains to be determined. Perhaps it will be the Bureau of Alcohol, Tobacco, Firearms and Explosives, which has regulatory authority over firearms. Or the courts may decide as they resolve cases. Either way, Congress has yet again handed off its responsibility for defining crimes to unelected bureaucrats and judges.

Until a specific definition exists, it is unclear how the federal government will implement this prohibition. Suppose a criminal-records check indicates that a potential purchaser has committed assault or battery. What next? Maybe the trial record will show that the defendant was in a relationship with the complaining witness. Or maybe it won’t. If such information is available, how is the examiner supposed to gauge the relationship? The available records likely won’t provide the precise details of the relationship. Even if they do, the examiner still has to decide whether the relationship was serious enough to trigger the gun disability. The Senate compromise feeds many prospective gun owners to the bureaucratic wolves.

The Bipartisan Safer Communities Act will likely pass because members of Congress feel enormous pressure to do something. But it is not a good bill, and it deserves further deliberation and refinement. The Senate’s job is to help draft good laws by cooling the passions of the moment. Right now, it is failing.

Mr. Leider is an assistant professor at Antonin Scalia Law School.

Wonder Land: Joe Biden prefers to talk about racism and guns rather than face the real problem. Images: AFP/Getty Images/Reuters/Shutterstock Composite: Mark Kelly

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