Well that didn’t take long. Just a few hours after the Senate gave its formal okay late on Thursday, the House of Representatives approved the Senate gun deal on Friday afternoon along a mostly party-line vote, with 14 Republicans joining Democrats in sending the measure to Joe Biden’s desk.
I’ve got a piece coming out later this afternoon why Republicans like Mitch McConnell were so willing to work with Democrats to be able to say they did “something” here, so I won’t get into the politics of the bill in this post. Instead, let’s talk about this piece by Robert Leider, an associate professor at the Antonin Scalia School of Law, which does the best job I’ve seen so far in laying out the reasons why both the left and the right should be opposed to the deal.
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.
… 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.
Go read the whole thing if you can (unfortunately it’s behind the WSJ paywall for non-subscribers), because that’s just the tip of the iceberg as far as Leider’s concerned. Other issues he raises for the left include increasing the penalty for being a prohibited person in possession of a firearm from 10 to 15 years in federal prison (though, to be honest, I rarely if ever run across stories of criminal defendants getting the maximum penalty as is) and the disproportionate burden of the laws that will fall on young minority men.
For conservatives, Leider also points to the problems with closing the “boyfriend loophole”, which he believes is defined so vaguely by the legislation that it’s unclear who will actually determine whether an individual meets that criteria.
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.
I like what Leider has to say, but honestly this argument wasn’t going to make a difference, even if the column had come out a week ago instead of just a few hours before the Senate approved the deal. Republican and Democratic leadership were both too keen on “doing something” in response to the shootings in Buffalo and Uvalde, and coming up with something that could quickly pass was clearly any of the particular policy points contained within. Now that the bill is on its way to becoming law, Leider’s arguments may best be put to use in the court challenges that are likely to come.