A Glorious Sunset
On assault weapons and laws that fade away
On September 13, according to a squad of concerned ex-presidents, the streets of America will return to a grim, bloody age of semi-automatic gun murder run amok—all because current President Bush and a feckless Congress seem on track to allow the sunsetting of portions of 1994's Violent Crime Control and Law Enforcement Act, popularly known as the "assault weapon ban."
The ban targeted a variety of semi-automatic weapons in the midst of a public debate designed to conflate them with actual automatic military assault rifles. The ban's logic had far more to do with the guns' cosmetic features, which made them look like scary weapons from the movies, than with their actual functioning. Reason contributor David Kopel wrote a very thorough analysis of why the ban should not even have passed a "rational basis" legal challenge, never mind constitutional muster. This is because of, among other things, the arbitrary and appearance-based targeting of certain weapons over functionally similar other ones, and the lack of any demonstrable connection between these weapons and any crime threat. (The banned guns were used in less than 5 percent of gun crimes, pre-ban.)
Firearm deaths in general did start falling after 1994. However, crime in general was on a downward slump through the '90s, with total violent crimes (including rape, robbery, aggravated and simple assault, and homicide) beginning a precipitous drop after 1994 as well—to the lowest levels ever recorded by 2002. So, perhaps that ban sent such a powerful and effective we're-not-messing-around message from the Congress that criminals of all sorts—a cowardly and superstitious lot—were intimidated permanently. Or, just maybe, forces other than banning so-called assault weapons were at work in the drops in firearm deaths in the past decade. (Indeed, a 1999 National Institute of Justice report on the ban's effect had trouble discerning a result because "the banned weapons and magazines were rarely used to commit murders in this country.")
I guess we'll know in a few years. The ban, which was passed only with the magic of a built-in 10-year sunset, seems on its way out. The sunset provision was vital to selling the bill, because it wasn't overwhelmingly beloved to begin with. The bill passed the House by a very narrow 216-214 vote—with some last-minute pressure from the not-yet-dead Ronald Reagan, of all defenders of strictly limited government and constitutional rights, helping sell some Republicans on its merits.
No less skilled a politico than then-President Clinton blamed the Democrats' loss of the House less than two months later to this vote—"the fight for the assault-weapons ban cost 20 members their seats in Congress," the best-selling author admitted at the time to the Cleveland Plain Dealer. In 1996, the House even voted 239-173 to kill the ban, but that effort went nowhere in the Senate. Still, despite his widespread support among gun-rights aficionados, Bush has promised to sign an extension of the ban—if it shows up on his desk. But he's doing nothing to help ensure that happens. (The National Rifle Association (NRA) is holding back its, doubtless inevitable, official endorsement of Bush until after Sept. 13.)
A renewal did almost show up on the so-far vetoless president's desk back in March, when Sen. Dianne Feinstein (D.-Calif.) succeeded in adding it to an NRA-beloved bill to exempt gun manufacturers from liability for misuse of their guns. But the NRA abandoned the whole bill over that rider, apparently after some in-fighting between pragmatically political types and the pry-my-gun-from-my-cold-dead-grip crowd. Bush undoubtedly is crossing his fingers he'll get the political advantage from vowing to renew the ban without the political peril of actually renewing it.
So, a pointless ban, and a wedge in on banning certain weapons for completely arbitrary reasons, is marked for death—thanks to the wonders of sunsetting. It's a potentially marvelous procedural weapon, one that is theoretically neutral in effect but holds forth an increased possibility of keeping momentary panics of a political season gone by from burdening the Republic for time immemorial. As Friedrich A. Hayek (and, uh, me, in this June 1996 Reason editorial) recognized, sometimes seemingly neutral and on-their-face contentless changes in rules can be powerfully effective in creating a more efficient and proper order of government—in this case, holding out hope for more curbs on power, and lessening the grip of the dead, and often hysterical, hand of the past on the present.
Of course, sunsetting won't always kill the laws or agencies it's aimed at. Even with widespread criticism from congressmen and the General Accounting Office, as Vern McKinley detailed in the pages of Regulation, the Commodity Futures Trading Commission managed to continually survive four-year sunsetting deadlines (with staffing falling right before deadlines, to show the CFTC's lean-meanness, and rising immediately thereafter).
Reason contributor Chris Mooney has looked skeptically on the history and efficacy of sunset laws on both the state level (lots of costs, little savings) and the federal one. In the Bush era of sunset mania, who can imagine a successful sunsetting of tax cuts, which will play as tax hikes? Or of "national security" legislation like the Patriot Act? Mooney grants, though, that the existence of the sunset provisions has the salutary effect of making the executive branch more solicitous of congressional inquiries about the Act, since it can't be blithely considered a fair accompli.
As with other procedural changes like balanced budget amendments and term limits, there is nothing stopping people from achieving the same results those rule changes seek, if people would buckle down, quaff a Mountain Dew or three, and just do it. Congress could, after all, just decide to go after obsolete or ill-considered legislation and tear it down, sunset provisions or no.
But we all know that isn't likely to happen often. Thus, sunsetting should be cheered, and encouraged as a feature for more future legislative restrictions on our liberty, because it makes it easier for legislators to do the right thing—by doing nothing. And usually, doing nothing is the very best we can hope for from them.
