The Crime Bill's Defeat Helped the Constitution

By David Kopel

Newsday, August 17, 1994, Wednesday, p. A37

LIKE A SWAMP creature from a science-fiction movie, the federal crime bill has been killed once, but it now appears to be stirring again, ready to wreak havoc. A few days ago the House of Representatives defeated the bill, 225-210, on a procedural vote. The Democratic leadership and President Bill Clinton are now hard at work trying to find some way to revive it, motivated of course by genuine concerns over public safety, rather than by the president's political need to sign something that says "crime bill" on it.

But while the Beltway leadership fulminates against not getting its way and complains about "gridlock," the defeat of the crime bill illustrates that our Constitution is working rather well.

Much of the blame (or credit) for the bill's demise has been put on the National Rifle Association, which objected to a provision to outlaw more than 200 guns dubbed "assault weapons." If the Second Amendment right to bear arms means anything, it means that the federal government cannot outlaw guns that (1) are used in only about 1 percent of gun crimes, according to police statistics and (2) differ from other guns only cosmetically. The federal gun ban would have outlawed firearms on the basis of "characteristics" such as the presence of a bayonet lug - as if Americans were plagued by an epidemic of drive-by bayonetings.

Two-thirds of the Republicans who had voted for the so-called "assault weapon" ban in May as a stand-alone measure voted against the crime bill. They argued that the crime bill had too high a ratio of pork to substance. Despite claims about putting 100,000 new cops on the streets, the bill provided funding for only 20,000 new police officers (about seven per county). In contrast, the "prevention" sections of the crime bill gave big-city mayors enough money to hire 40,000 new social workers for crime-prevention programs, such as dance classes, arts and crafts and midnight sports.

The Republicans were right to ridicule the pork, but they missed the larger point: The federal government has no business in local crime fighting. Whether you think that more police or more self-esteem classes are the key to crime control, the solution ought to come from local communities. One important benefit of independent state governments is to allow states to experiment with a variety of solutions, rather than be handed a one-size-fits-all directive cobbled together late one night by a few congressional staffers.

The Constitution doesn't give Congress the authority to legislate on any subject it wants. In contrast to state legislatures, Congress is granted only limited, enumerated powers over specific subjects.

Many Republicans who helped defeat the crime bill, however, were not thinking about the proper scope of congressional powers. They simply wanted a different type of interference in state and local affairs: Washington wanted to tell states how to run their parole systems. Some Republicans also objected to the one sensible provision of the crime bill, a moderation of the severe federal mandatory sentences inflicted on nonviolent first-time offenders caught possessing or selling small quantities of drugs. Those Republicans wanted instead to expand the mandatory minimums even further, such as by imposing a 10-year mandatory sentence on a college senior who gave her high-school brother a marijuana cigarette ("distribution of drugs to a minor").

Some representatives voted against the crime bill on constitutional principle, while others complained that serious jail terms were somehow too forgiving. But whatever the reasons, a bill that would have bloated the deficit, harmed the Constitution and brought intrusive federal incompetence to yet another aspect of American life has been stopped, at least for now. If the crime bill's defeat is "gridlock," it is precisely the kind of gridlock intended by the creators of the Constitution, who wanted to make it as difficult as possible for cynical politicians to enact destructive legislation imperiling freedom.

David Kopel, an associate policy analyst with the Cato Institute, is the author of "The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies?"  

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