Jacob Sullum: A New Gun Law Reflects the Worst Instincts of Both Parties

Until last month, someone with a felony record who obtained a gun was committing a federal crime punishable by up to 10 years in prison. Now he or she is committing two federal crimes, each punishable by up to 15 years in prison.

Contrary to what you may have read or heard, the story of how that happened is not an inspiring example of bipartisan cooperation to protect public safety. It is a dispiriting illustration of how the worst instincts of both major parties combine to produce policies that are neither just nor sensible.

Republicans like to look tough on crime but tend to be leery of gun control. Democrats, by contrast, are enthusiastic about gun control but tend to be leery of draconian criminal penalties that contribute to mass incarceration and have a disproportionate racial impact.

The Bipartisan Safer Communities Act, which passed the Senate by unanimous consent and passed the House by a vote of 234 to 193, offered something to both sides. Republicans got tougher sentences; Democrats got more gun control; and both got to pretend they were doing something to prevent mass shootings.

Among other things, the law expands background-check requirements for gun buyers younger than 21, widens the categories of people who are not allowed to buy firearms and provides federal funding for states with red flag laws. Those provisions are unlikely to have a meaningful impact on mass shootings, but they will cancel the gun rights of adults based on juvenile records and subsidize state laws that suspend those rights without due process.

The law also doubles down on the longstanding prohibition of gun possession by people who have been convicted of crimes punishable by more than a year of incarceration. That rule applies no matter how old the conviction is and regardless of whether the crime involved violence.

Violating this gun ban previously was a felony with a maximum penalty of 10 years in prison. The Bipartisan Safer Communities Act raises the maximum sentence to 15 years and prescribes the same penalties for “trafficking in firearms,” which is defined broadly enough to include receipt of a gun by someone who is legally disqualified from owning one.

The latter provision covers not only people with felony records but also cannabis consumers, even if they live in states that have legalized marijuana, anyone who has ever been subjected to involuntary psychiatric treatment, whether or not he was deemed a threat to others, and other categories of people who have never done anything to indicate that they are dangerous. Since receiving a gun is a felony for them, it also qualifies as “trafficking in firearms” and can send them to prison for both offenses if they are caught.

In fiscal year 2021, according to a recent report from the U.S. Sentencing Commission, 89% of federal firearm offenses involved illegal possession, often without aggravating circumstances or a history of violence. Fifty-five percent of those defendants were African Americans, who account for about 14% of the U.S. population.

Even the American Civil Liberties Union, which thinks the right to keep and bear arms is a figment of the Supreme Court’s imagination, recognizes that “the categories of people that federal law currently prohibits from possessing or purchasing a gun are overbroad, not reasonably related to the state’s interest in public safety, and raise significant equal protection and due process concerns.” As an appeals court judge, Supreme Court Justice Amy Coney Barrett went even further, arguing that the “wildly overinclusive” gun ban for people with felony records violates the Second Amendment.

Undeterred by such criticism, Republicans who claim to support the Second Amendment voted not only to continue punishing people for exercising the rights it guarantees but to increase the penalties they face. So did Democrats, despite their avowed concern about excessively severe sentences and racial disparities.

This is what bipartisan compromise means for members of Congress: I will compromise my principles if you compromise yours.