Senate negotiators say they've got a bill. Do they still have the votes?

(AP Photo/J. Scott Applewhite)

As of the time of posting, we still haven’t seen the text but it’s coming soon, supposedly. And so, apparently, is the first procedural vote in the Senate, as Chuck Schumer is trying to ram through a deal as quickly as possible. I won’t reiterate my argument against rushing the vote, but I will link to it in case you’re interested.

The Washington Post has had a sneak peek at a few details of the legislation; including the “boyfriend loophole” that was one of the last points of agreement.

According to draft text of the provision obtained by The Washington Post, the bill would bar a misdemeanor domestic violence offender who has a “current or recent former dating relationship with the victim” from owning or buying a gun.

What constitutes a “dating relationship” is not precisely defined in the draft text, which would instead allow courts to make that determination based on the length and nature of the relationship, as well as “the frequency and type of interaction” between the people involved. The text excludes “casual acquaintanceship or ordinary fraternization in a business or social context.”

Those offenders would be automatically entitled to regain their gun rights after five years as long as they do not commit any further violent misdemeanors or other disqualifying offenses.

That last line is very interesting, and yet another sign that Senate Democrats were willing to bend on a lot of these issues in order to say they passed the “most significant new gun restrictions since the 1990s” (as the Washington Post described it today). And if gun owners are rightfully worried about this bill leading to a slippery slope of more restrictive measures, we should at least be mindful of the fact that it could work both ways.

Expanding the category of prohibited persons could lead to even more misdemeanor crimes becoming a disqualifier, for instance, but an automatic restoration of rights for some could open the door for more reform of the categories of prohibited persons; ending the automatic lifetime revocation of those convicted of non-violent felonies, for example, is a much easier argument to make if we’re automatically restoring the rights of some of those convicted of a misdemeanor domestic violence offense.

The Post has a few other details of the agreement, including the grants to states for “red flag” laws.

According to a summary of the draft bill, an existing Justice Department grant program would be expanded to allow funding for state “crisis intervention programs,” including not only red-flag laws but also drug courts and veterans’ courts. The bill provides $750 million in new funding for those programs, the summary said.

So states don’t have to impose “red flag” laws in order to access the federal funds, which means the hardest pill to swallow for Second Amendment activists will likely be the new requirements on background checks for adults under the age of 21.

Negotiators settled on a three-business-day “enhanced search” window for gun buyers under 21 to allow local authorities to scour confidential databases, according to the bill summary, with another seven business days available to complete a review if the initial search raises a potential disqualifying issue.

That structure stands to be especially controversial to gun rights advocates, who have long opposed the prospect of creating a de facto waiting period for purchasing a gun. To quell those concerns, the “enhanced search” provision is to expire after ten years — identical to the “sunset” provision that led to the expiration of the 1994 federal assault weapons ban.

That sunset clause may bring a senator or two on board, but I don’t think it will satisfy most of the 2A organizations out there. Honestly, this has gone from a minor concern of mine to my biggest concern now that the “red flag” laws are even less incentivized. Do waiting periods infringe on someone’s ability to own a firearm? Absolutely they do. I’ve spent the last couple of years reporting on months and even year-long delays in processing Firearms Owner ID cards and other permits required to own or purchase a firearm; a clear deprivation of the rights of tens of thousands of Americans in my opinion.

Ten days is not a year, however, and I’m sure many voters will consider this to be entirely “reasonable”, as much as I hate that word. And if this deal does become law, there is some consolation in the fact that the constitutionality of this portion of the legislation can and will be challenged in court; in fact it would join the many other cases dealing with gun sales and possession of firearms to adults younger than 21 that are already working their way up to the Supreme Court.

But barring any undiscovered poison pill gun control language hidden inside a sub-sub-sub-paragraph of an otherwise innocuous portion of the bill, the ten Republican senators who signed on to the framework of the deal a couple of weeks ago don’t have much to complain about, though at least a few of the Democrats and Republicans in Congress who weren’t a part of the negotiations will have a very different perspective. Democrats like AOC will end up complaining that the bill is too friendly towards having police in schools and not focused nearly enough on imposing new gun control laws, while Republicans can point to the waiting period on young adults purchasing a firearm as an infringement that could never be supported.

As long as those ten Republican senators maintain their position, though, it’s not likely to matter to the final vote. Democrats could tank the bill and complain that that Republicans didn’t go nearly far enough in imposing “commonsense” restrictions on a constitutional right to make it worth passing, or they can sign off on it and use it to drum up a scintilla of enthusiasm from their base by boasting about passing the “most meaningful gun reform legislation in 30 years” (while also complaining that Republicans didn’t go nearly far enough in enacting those “commonsense gun safety reforms”).

As for Republicans (or at least the ones who ultimately end up supporting the measure), they get to tell voters that they took action to address an issue that’s suddenly on a lot of minds, and they get to tell their base that they held the line on gun bans, age restrictions, and (potentially) even the establishment of “red flag” laws by allowing states with other crisis diversion programs to have access to the pool of federal grant money without having to put a “red flag” law on the books. They can even tout the fact that the bill won’t increase government spending, because the money for grants is coming from a one-year delay of a Medicare drug rebate provision, and according to the post the nearly $21-billion saved will be used to fund “more than a dozen new mental health and school security programs.”

The waiting period for young adults will be a non-starter for some 2A activists and gun rights groups, but I don’t think it’s going to be enough of a concern that any of the 10 Republicans pulls away from the deal, particularly when there was discussion at the beginning about raising the age to purchase a firearm to 21. Remember, none of the GOP members who signed on to the framework agreement are up for election this year, and four of them are retiring outright. They don’t have to face angry voters this fall, or angry primary voters this summer.

Honestly, even for those up for election this fall the political environment is so good for Republicans at the moment that some members might roll the dice and risk ticking off single-issue 2A voters in favor of attracting the support of even more non-gun owning independent ones. They might get mad, but are they gonna stay home on Election Day? Vote Libertarian or write-in their own name? In a few cases, yes. But in this political and economic environment I’m not sure how many pure single-issue 2A voters there really are out left out here. Gas at $5 a gallon and fear of a looming recession has a way of expanding your political interests and issues, you know?

Republicans are headed for a red wave election this November, and in order for the wave to get bigger you’ve got to bring voters into the party. Approving this bill allows them to make the pitch to those independents and on-the-fence Republicans that they’ve not only “done something”, but they’ve done something substantial to help ensure that their kids are safe when they’re in school. I suspect that’s enough for at least 65 votes in the Senate, but with final approval coming as soon as the end of this week, we won’t have to wait long to learn the final tally.

In fact, with the Supreme Court set to release more opinions on Thursday, we may see the first “substantial gun measures” in 30 years approved by the Senate and SCOTUS establishing that the right to bear arms includes a right to carry a firearm for self-defense within a few hours of each other. If that convergence actually happens I may just ditch the blog posts and live stream Cam & Co for three hours like the old days. Who’s in?