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December 17 -- The New Federalism
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The killing of 49 people at a nightclub in Orlando, Florida on June 12 by a man armed with a military-style assault rifle and a handgun hasn’t produced any more substantive action on gun control in Congress than other recent mass shootings. But those incidents may have tipped the scale in the direction of gun control supporters there as well as in state legislatures.
The initial response of Congress - where the scale has been tipped decidedly in the direction of gun rights - to the deadliest mass shooting in U.S. history was the proposal of multiple competing Republican- and Democrat-backed gun measures, most coming in the form of amendments to appropriations bills in each chamber. U.S. Sen. Dianne Feinstein (D-California) offered an amendment barring anyone on a terrorism watchlist from buying a gun, while U.S. Sen. John Cornyn (R-Texas) and U.S. Rep. Lee Zeldin (R-New York) proposed companion measures in their respective chambers barring individuals on a terrorism watchlist from purchasing a firearm only if investigators were able to prove they actually had ties to terrorists within 72 hours of an initiated sale. Without that restriction, Republicans and the National Rifle Association argued, those mistakenly on the watchlist would be denied their Second Amendment and due process rights.
“Every single senator wants to deny terrorists access to guns they use to harm innocent civilians, but there’s a right way to do things and a wrong way,” Cornyn said, according to the Los Angeles Times.
Another pair of competing amendments, from U.S. Sen. Christopher S. Murphy (D-Connecticut) and U.S. Sen. Charles E. Grassley (R-Iowa) would have expanded background checks on firearm purchases to include sales at gun shows and on the Internet, and boosted state reporting of mental health records to the FBI’s National Instant Criminal Background Check System used to vet prospective gun buyers without expanding the universe of gun sales subject to background checks, respectively. But both of those proposals as well as the two terrorism watchlist amendments in the Senate failed on near straight party-line votes. And the House measures appeared to be headed for the same fate, which would make federal lawmakers just as unproductive on gun control in the wake of the Orlando shooting as they were last year, after 14 people were killed in San Bernardino, California, and in 2013, after 20 schoolchildren and six adults were killed at Sandy Hook Elementary School in Newtown, Connecticut.
At times the partisanship on the issue in Congress the last few weeks has seemed even more rancorous than in the past, the most notable occasions being when Democrats staged a 15-hour filibuster in the Senate and a 25-hour sit-in in the House to try to force Republican leaders to allow votes on the various gun proposals.
Still, some congressional lawmakers said they’ve noticed a change. As U.S. Sen. Chuck Schumer (D-New York) bluntly put it to The New York Times, “For the first time in quite a while you’re seeing some Republicans buck the NRA.” U.S. Sen. Amy Klobuchar (DFL-Minnesota) expressed it in broader terms to CNN, saying that she didn’t know if the votes would ultimately go any differently on the issue than they had in the past but that “People are starting to talk.”
“There are starting to be negotiations going on,” she said. “I think that’s very important.”
One manifestation of that new willingness to talk is the compromise watch-list amendment - applying to a more limited group of people than Feinstein’s proposal but providing a less restrictive gun-purchase denial process than the Cornyn-Zeldin measure - drafted by U.S. Sen. Susan Collins (R-Maine) and a group of other Republican and Democratic senators. The “no fly, no buy” measure was consigned to legislative limbo after surviving a motion to table it but failing to attract the 60 votes needed to advance. The vote was 52 to 46. But seven Republicans, in addition to Collins, joined the chamber’s Democrats in supporting the proposal.
“All of us are united in our desire to getting something significant done on this vital issue,” Collins said when the measure was unveiled last month, according to The Atlantic.
The slight give on the issue is apparently the result of the terrorist element of the San Bernardino and Orlando shootings, with the perpetrators in each of those attacks having either been inspired by or pledged allegiance to terrorist groups. Omar Mateen, the gunman in the Orlando shooting, had been on a terrorist watchlist from 2013 to 2014.
“Surely the terrorist attacks in San Bernardino and in Orlando that took so many lives are a call for compromise, a plea for bipartisan action,” said Collins.
Gun control supporters have had more tangible success recently in state legislatures. Laura Cutiletta, managing attorney for the Law Center to Prevent Gun Violence, told NBC News that since the Sandy Hook shooting, 42 states have enacted 138 new laws tightening restrictions on the purchase or possession of firearms.
“There is a very stark difference in what has happened since Newtown compared to what it was like before,” she said, adding that the change includes not just the enactment of “proactive” gun control legislation but also the defeat of “gun lobby bills.”
The failure of campus carry legislation this year in Alaska, Florida and Georgia - considered gun rights strongholds, according to Brina Milikowsky, chief strategy officer for Everytown for Gun Safety, as NBC News reported - would presumably fall into the gun lobby defeats category. The gun control movement just claimed several more victories of the proactive variety as well, with California Gov. Jerry Brown’s (D) signing of six gun control bills introduced in response to the San Bernardino shooting. The measures include SB 1235, which will make California the first state to require background checks for ammunition purchases; SB 880/AB 1135, which close the so-called “bullet-button loophole” in the state’s current ban on firearms with detachable magazines; and AB 1511, limiting the lending of guns to family members who haven’t undergone background checks, which is how the husband-and-wife San Bernardino shooters acquired their weapons.
The Los Angeles Times noted that the signings seemed to mark a “subtle shift” for the governor, who’s been highly skeptical of gun control proposals in the past. Three years ago he vetoed several gun control measures, including one that would have prohibited the sale of semiautomatic rifles with bullet buttons.
“I don’t believe that this bill’s blanket ban on semiautomatic rifles would reduce criminal activity or enhance public safety enough to warrant this infringement on gun owners’ rights,” he said at the time.
But Brown vetoed five gun control bills this month too, including SB 894, requiring gun losses or thefts to be reported within a few days, which, according to LexisNexis State Net’s legislative tracking database, he said in his veto message he didn’t believe would help reduce gun trafficking or turn irresponsible people who don’t report the loss or theft of a gun into responsible people who do.
“My goal in signing these bills is to enhance public safety by tightening our existing laws in a responsible and focused manner, while protecting the rights of law-abiding gun owners,” he wrote in a signing statement he released on July 1.
The fact that Brown vetoed almost as many gun bills as he signed didn’t appease gun rights groups. According to The Mercury News, Brandon Combs, president of the Firearms Policy Coalition, said he expected “mass noncompliance” with California’s new laws, adding, “The government would be wise to remember that there are more California residents with guns than there are government officials to take them away.”
“To coin a phrase,” he said, “‘Come and take it.’”
But gun rights groups have had their share of wins in the states too, including the passage of laws allowing concealed weapons to be carried on college campuses, providing gun manufacturers and owners protection from civil lawsuits, expanding gun permit reciprocity agreements with other states, and requiring 16 states to report mental health and other records to the federal background check system.
“The bottom line is we’ve scored very, very well at the state level, Alan Gottlieb, chairman of the Citizens Committee for the Right to Keep and Bear Arms and founder of the Second Amendment Foundation, told NBC News.
Jon Vernick, co-director of Johns Hopkins University’s Center for Gun Policy and Research, told NBC News that gun rights groups have probably had more legislative successes but that in his opinion gun control groups have had “more substantial” ones, like the passage of laws expanding background checks to all gun sales in Colorado and Delaware.
Those on both sides of the issue say what’s really changed in the states is that gun control advocates have become more active, largely due to the entry of Everytown, which is backed by billionaire and former New York City Mayor Michael Bloomberg.
Everytown’s Milikowsky said her group and its grassroots arm Moms Demand Action “are able to bring both policy and legal expertise and political strategy to build campaigns...as well as real grassroots power.”
Despite the gun control movement’s stepped up efforts, Lawrence Keane, a spokesman for the National Shooting Sports Foundation, said there’s no evidence public opinion has shifted away from gun rights. And polling data appears to support that claim. Historical data from Gallup indicates that the number of people who thought gun laws should be stricter in October 2015 was roughly the same as the number who did in October 2005, 55 percent versus 57 percent.
Gallup’s data also suggests that public opinion hasn’t changed too much on a primary focus of the gun control movement. Eighty-six percent of those polled in October 2015 said they favored background checks for all gun purchases, while 92 percent of those surveyed in December 2012 and 83 percent of those surveyed in February 1999 said they favored background checks for gun purchases at gun shows. On the other side of the issue, the number of those opposed to a ban on handguns for anyone other than police and other authorized individuals has risen over the past decade, from 64 percent in October 2005 to 72 percent in October 2015. In addition, 56 percent of those polled in October 2015 said allowing more Americans to carry concealed weapons would make the country safer.
Frank Newport, editor in chief for Gallup, told NBC News, “We’ve got two conflicting strains of thought” in this country about how to deter gun violence.
“Collectively, Americans say yes to background checks of any kind, he said. "At the same time, they believe individual citizens taking matters into their own hands would also be effective.”
That dichotomy has helped gun control and gun rights groups both succeed in appealing directly to voters. In 2014 Washington state voters approved an initiative requiring universal background checks on gun purchases (I-594) by a margin of 60 percent to 40 percent. The same year voters in Alabama and Missouri approved initiatives (Amendment 3 and Amendment 5) by even wider margins, 72.5 percent to 27.5 percent and 61 percent to 39 percent, respectively. Background check initiatives have qualified for the ballot in three states - California, Maine and Nevada - this year.
In response to the gun control movement’s increased activity in the states, Keane of the National Shooting Sports Foundation said his organization has “adjusted resources to address issues at the state level as well.” Presumably the NRA has done the same with its abundant resources, an operating budget Milikowsky placed at $345 million, 10 times bigger than Everytown’s.
Gun control advocates, meanwhile, appear to be following the lead of the marijuana legalization and same-sex marriage movements in trying to pressure Congress to act by scoring victories in states.
“That’s a long-road strategy to add state after state,” Vernick of the Center for Gun Policy and Research told NBC News. “The hope is ultimately that it persuades Congress that the laws are reasonable that they’re not taking guns away from law-abiding gun owners and necessary.”
The question is whether Congress will end up looking more like the states on the issue or vice versa?