Last week, the House passed a "gun reform" package that's unlikely to pass the Senate. Then, a bipartisan group of senators struck a deal on modest "gun reform" proposals with better prospects. Whatever your take on the merits of these bills, describing legislative proposals for restrictive measures as "reform" is a jarring use of the word—especially after recent national discussions about reducing criminalization as part of a genuine effort to reform the criminal justice system. Real gun reform should involve efforts to minimize conflicts between government enforcers and the public by doing away with intrusive restrictions on people who have done no harm to others.
"Today, we are announcing a commonsense, bipartisan proposal to protect America's children, keep our schools safe, and reduce the threat of violence across our country," 20 U.S. senators from both sides of the aisle trumpeted this week. Details remain sketchy, but the senators referenced red flag laws which let police seize firearms from those considered potential threats, and the inclusion of juvenile records in background checks for gun buyers younger than 21. That was enough for The New York Times to hail the deal as "a significant step toward ending a yearslong impasse over gun reform legislation." CBS News called it a "bipartisan deal to reform U.S. gun laws." The Senate scheme contrasts with the House's "sweeping gun reform package" of restrictions, as per CNN, which everybody concedes has no future.
But "reform" is a weird word for legislation that threatens people with prison and must be enforced by police. Just recently, proposed criminal justice reforms featured reducing penalties for victimless crimes and repealing the death penalty. Reformers suggested legalizing many activities, using alternatives to police where possible, and eliminating qualified immunity protections for police misconduct.
"Decriminalization helps reduce crime," Stephen Averill Sherman of Rice University's Kinder Institute for Urban Research noted in 2020 after the killing of George Floyd by police raised concerns about biased and brutal law enforcement. "In this country, the police actively pursue both users and sellers of hard drugs. Rendering these activities legal would place them under the aegis of non-police institutions, such as health and human services." Reducing the areas of life in which law enforcers intervene, he suggested, reduces conflicts between them and the public.
Unfortunately, criminal justice reform was tainted (temporarily, we can hope), by delusional prosecutors who ignored violence and theft and alienated the public.
Can reform, which means "improve" in common usage, really refer to both more criminalization and less criminalization, to increased policing of the public as well as reduced? That makes no sense when you consider the contradictions between earlier criminal justice reform and current gun "reform." Take the senators' advocacy of "state crisis intervention orders," often termed "red flag laws," for example.
"There are two basic problems with red flag laws that cannot be wished away by consensus-building rhetoric: Predicting violence is much harder than advocates of this approach are usually willing to admit, and trying to overcome that challenge by erring on the side of issuing red flag orders inevitably means that many innocent people will lose their Second Amendment rights, typically for a year and sometimes longer, even though they never would have used a gun to harm anyone," noted Reason's Jacob Sullum.
Rhode Island's chapter of the ACLU agrees, responding in 2018 to a red flag law proposal there with objections to "the breadth of this legislation, its impact on civil liberties, and the precedent it sets for the use of coercive measures against individuals not because they are alleged to have committed any crime, but because somebody believes they might, someday, commit one."
Remember that New York already had a red flag law that "should have" been applied to the Buffalo shooter, Vox's Nicole Narea insists, but wasn't. That prompted officials to tighten the law, magnifying civil liberties dangers without improving the ability to predict who might someday commit a crime.
Proposals to extend background checks into juvenile records are also worrying. Rep. Alexandria Ocasio-Cortez (D–N.Y.) warns of "the juvenile criminalization, the expansion of background checks into juvenile records," in comments to The Independent's Eric Michael Garcia. She added that putting cops in schools didn't make them safer but "increased the criminalization of teens in communities like mine."
Civil libertarians have long objected to "the use of arrest to address behavior that would likely be handled in the school by school staff if not for the presence of on-site officers" as put in a 2012 ACLU report. "Americans are experiencing higher rates of arrests and convictions by age 26 than did members of the generations before them," cautioned a 2018 RAND research brief. Now lawmakers want to turn the resulting criminal records into grounds for denying civil liberties.
Worse, there's the near certainty that new laws will be as unevenly enforced as old ones. That means disparate impact on minority communities, as alleged by public defenders in a brief in a gun rights case now before the U.S. Supreme Court. Such laws are also likely to be brandished in our politically polarized country as weapons by partisans against their enemies. Red flag laws, with their virtually nonexistent due process protections, have already been abused to settle personal scores.
So, what does real gun reform look like?
In 2013, after terrorists attacked the Westgate mall in Nairobi, Kenya, then-Interpol Secretary General Ronald Noble "said there are really only two choices for protecting open societies from attacks like the one on Westgate mall where so-called 'soft targets' are hit: either create secure perimeters around the locations or allow civilians to carry their own guns to protect themselves," ABC News reported.
So, real reform can mean looser restrictions, empowering people to carry the means of self-defense without running afoul of the law. It also requires recognizing that many politicians proposing tighter gun laws helped to create our violence problem with intrusive pandemic policies that damaged our society.
"Violent crime isn't just rising in the nation's cities," The Wall Street Journal reported last week. "Murder rates across the rural U.S. have soared during the pandemic, data show….As lockdowns took hold, the sequestering of family members inflamed household tensions."
"In order to curb the spread of SARS-CoV-2 quarantines, social isolation, travel restrictions and stay-at-home orders have been adopted," a December 2020 article in the American Journal of Emergency Medicine pointed out. "Quarantine conditions are associated with alcohol abuse, depression, and post-traumatic stress symptoms. Stay-at-home orders may cause a catastrophic milieu for individuals whose lives are plagued by domestic violence."
Letting politicians implement restrictive laws to address social dysfunction their policies created is like hiring a pest control company to eliminate rats it released into your house. Instead of handing them more authority, we should reduce their power in order to relieve social pressures that breed violence.
And we need to revisit criminal justice reform. That doesn't mean the delusional kind that ignored crime, but instead means legalizing victimless activities, holding cops accountable, and focusing on true threats to life, liberty, and property. Real gun reform means loosening laws, reducing opportunities for conflict between government and the public, and empowering people to defend themselves.
The Rattler is a weekly newsletter from J.D. Tuccille. If you care about government overreach and tangible threats to everyday liberty, this is for you.