What Goes Around....

by Dave Kopel

The Blue Press, 1997

Federal gun laws have never been models of fairness, but last fall, Congress enacted new gun legislation that was particularly outrageous, even by federal standards. The new law bans anyone who has ever been convicted of a misdemeanor involving domestic violence from possessing any kind of firearm for the rest of his life.

In other words, if in 1965 a person pled guilty to Disturbing the Peace ( a low-end misdemeanor in some states), and the plea was based on a situation in which a man's live-in girlfriend slapped him, and he then shoved her, and then they yelled at each other until the neighbors called the cops, the man is, as of 1996, banned from possessing any firearm, under any circumstances.

You might point out that this is very unfair, which it is, but the courts aren't in the business of striking down laws just because they are unfair.

You might point out that the new law violates the "ex post facto" clause of the Constitution. But courts have taken a very narrow view of the ex post facto clause. If a legislature criminally punishes you for something you did that was legal at the time you did it, the courts will void the law as violating the ex post facto clause.

But if the legislature merely changes the consequences of criminal conviction, then the courts are less likely to intervene - especially if the legislature claims that it's not really imposing extra punishment. To most folks, forfeiture of a constitutional right would seem like punishment. But in the past, courts have upheld laws similar to the domestic misdemeanor laws by claiming that the purpose of the disarmament is not to punish the guilty, but to protect public safety.

In the gun law context, retroactivity is nothing new. For example, the federal Gun Control Act of 1968 made it illegal for anyone with a felony conviction ever to possess a gun. So if you pleaded guilty to a tax crime in 1946, as of 1968 you lost your right to own a gun.

While the domestic misdemeanor gun ban is quite like other federal gun laws, there's one thing about it that's new: it applies to everybody. In contrast to every previous federal gun law, this one applies to the police and the military.

Now logically speaking, there's no reason for the police and the military to be exempt from gun laws. Yet federal law allows cops to own "cop-killer bullets" - even though cops have no interest in killing other cops. Federal law also allows police to own "assault weapons," which are supposedly useful only for massacring a bunch of innocent people quickly - even though cops are supposed to protect people, not slaughter them en masse.

The newest favorite measure of the anti-gun lobbies, Senator Barbara Boxer's (D-Calif.) proposed federal ban on "junk guns", supposedly outlaws only guns that are so poorly made that they don't function reliably. Yet her proposed ban contains a police exemption. Why would she want police officers to carry defective, dangerous guns?

The police exemption proves that the gun laws in question are a sham. There are plenty of legitimate defensive reasons for owning bullets with metal cores, or semiautomatic rifles, or small handguns. That's why the police, properly, want to make sure that they can continue to own such items. But it's thoroughly hypocritical for police lobbies - like the Fraternal Order of Police - to lobby to take certain types of guns or bullets away from the public, while reserving these items to the police only. If the items are only useful for crime, they have no place in police hands. If the items are useful for lawful defense, then ordinary citizens have just as much of a right to self-defense as do police officers.

In the past, federal laws about who can own guns have always exempted the police. Thus, while your 1946 tax felony makes it illegal for you to own a gun, a police officer who perpetrated the very same crime can still own his gun. Indeed, a police officer who is convicted of homicide, armed rape, armed robbery, or any other major violent felony can keep right on owning his gun, according to federal law.

So how is it that the police, like everybody else, are now being disarmed as a result of domestic misdemeanor convictions?

Well, as Congress was getting ready to go home and campaign last fall, they had to pass spending bills to keep the government going. President Clinton, however, would not accept a pure spending bill; he wanted lots of other things in the bill, he said. And if he didn't get them, he would veto the spending bill, shut down the government, and then blame the Republicans in Congress for shutting down the government.

The Republican leadership in Congress, with its usual lack of spine, submitted to the President. So one of the extra items thrown into the Continuing Resolution for government funding was the domestic misdemeanor gun ban.

In the final negotiations, pro-gun Rep. Bob Barr (R-Georgia), successfully added an amendment removing the "police and military" exemption from the bill. Thanks to the Barr Amendment, the new law applies to everyone.

As a law enforcement matter, the Barr Amendment is eminently sensible. If a person is so dangerous that he can't be trusted to posses a gun, then surely that person should not be a police officer. Police officers, after all, carry guns all the time, and are thus presented with a more constant temptation to gun misuse. Further, police officers have to intervene in domestic violence situations.

Of course a misdemeanor conviction is not a good reason for the loss of constitutional right, for anyone. But whatever the gun laws are, they should apply across the board.

If a person is barred by federal law from having a gun, and they possess a gun anyway, then they're guilty of a federal felony. Because the domestic misdemeanor law is retroactive, about one million Americans suddenly became felons when the law went into effect on September 30, 1996. This problem has attracted virtually no attention in Washington, D.C., other than from Gun Owners of America.

Of those one million new criminals, about 7,000 are police officers, according to the estimate of Victor Kappeler, director of the Criminal Justice program at Eastern Kentucky University. This problem has Washington in a tizzy.

So far, two reform bills have been introduced. One bill, W.R. 445, would leave the law unchanged, except for adding a police exemption. This bill is sponsored by Rep. Bart Stupak (D-Mich.), a generally pro-gun Congressman from Michigan's Upper Peninsula, who also happens to be a former police officer and state trooper.

The other bill is H.R. 26, sponsored by Rep. Bob Barr. His proposal would make the domestic misdemeanor gun ban applicable only to convictions on or after the date the law was enacted (Sept. 28, 1996). The Barr proposal would leave the law unchanged in applying the same to the police as to everyone else.

The most important reform is, at least for now, not on the table. A general matter, Congress has no legitimate constitutional authority to regulate who may and may not possess a gun. (There are few exceptions; since the Constitution gives Congress authority over immigration, Congress can ban gun possession by illegal aliens. Likewise, Congress can regulate gun possession on federal property.) While Congress, using its constitutional authority over interstate commerce, can properly regulate interstate gun sales, the Constitution gives Congress no authority over the simple possession of a gun within the boundaries of a single state.

Congress, of course, exercises such authority these days anyway, and the courts let them get away with it. But usurpation does not become legitimate through repetition.

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