This essay appeared originally on The Huffington Post.
The National Rifle Association spent more than $30 million to elect Donald Trump President. Particularly with Republicans in control of both the Senate and the House, and a vacancy on the Supreme Court, the gun lobby will expect an impressive return on its investment. What will it want?
Following the massacre of first graders at the Sandy Hook Elementary School, NRA Executive Vice President Wayne LaPierre infamously said that the lesson to be learned was: “The only thing that stops a bad guy with a gun is a good guy with a gun.” That phrase perfectly captures a core premise of Trumpism: that the nation is neatly divided into “good guys” (who have been forgotten by the elites controlling our government) and “bad guys” (Muslims, undocumented immigrants and “the others” who have been allowed to threaten the safety and well-being of the “good guys”). LaPierre’s slogan likely will animate the entirety of the NRA’s Trump Administration agenda.
Following the Sandy Hook shooting, President Obama issued a flurry of executive orders to strengthen federal efforts against gun violence; he issued additional orders in January of this year. We can expect President Trump to rescind many of these orders, particularly those designed to spur federal research on gun violence and to provide incentives for the development of safer gun technology.
Another possible NRA target is the database of crime gun traces maintained by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which provides invaluable information about how guns are diverted from the legal to the illegal market. The crime gun trace database has long been a threat to the NRA and the gun industry, in part because it can be used to identify gun dealers who supply a disproportionate number of guns to the illegal market. In 2003, Congress, following intensive lobbying by the NRA and the gun industry, enacted the Tiahrt Amendments (named after then-Congressman Todd Tiahrt of Kansas) restricting the use of federal money to give the public, including gun violence researchers, access to the database. Those restrictions have been in every ATF appropriations bill since that time.
But the Tiahrt Amendments still allow law enforcement access to the trace database. The database recently was used in a report issued by New York Attorney General Eric Schneiderman showing that three out of every four guns traced to crime in New York State, during the period 2005-2010, originated with gun dealers in other states, primarily from states with weak gun laws, like Virginia, the Carolinas, Florida and Georgia. This pattern suggests that strong state gun laws, as in New York, make it harder for criminals to get guns, making it necessary for the illegal market in those states to be supplied by dealers in states with weak gun laws. This interstate movement of guns into crime also argues for stronger federal gun laws to prevent the states with weak gun laws from undercutting the strong laws of other states. Thus, the gun lobby has more than enough reason to suppress the ATF data by even further limiting its use by law enforcement authorities.
The NRA may push the Trump Administration to further restrict use of the crime gun trace data by simply changing ATF policy; or it may seek to expand the scope of the Tiahrt Amendments through an amended appropriations rider or other legislation. Just as it has sought to suppress all CDC-funded research into gun violence, the gun lobby may seek to close all avenues to the use of ATF crime gun trace data to inform gun policy.
In Congress, it is likely that the first item on the NRA’s wish list will be national “concealed carry reciprocity” legislation, which would force states to recognize the concealed-carry permits of visitors from other states. Under this legislation, states could enforce their concealed-carry restrictions on their own residents, but not against visitors from other states with less restrictive laws. This would allow persons with concealed carry licenses from other states to carry concealed in Times Square, even if New York would never have allowed the same person to possess a gun, much less carry it concealed. In effect, states would be deprived of the authority to determine who the “good guys” are that should be allowed to carry concealed weapons, an extraordinary invasion of state prerogatives. Yet some of the strongest supporters of this idea in Congress are vociferous advocates of states’ rights in countless other contexts. For these fair-weather federalists, state autonomy must give way to the overarching goal of more guns carried in more public places. Gun control forces have been able to block this legislation in past years. The gun lobby is likely to redouble its efforts to pass it now.
Success in mandating concealed carry reciprocity may whet the NRA’s appetite for even greater federal interference with state gun laws. The gun lobby has reason to be dismayed at the success of gun control forces at the state level. In the wake of the Sandy Hook shooting, multiple states expanded their background checks to cover more transactions, or strengthened their licensing laws. In the 2016 elections, Nevada, California and Washington State all passed referenda strengthening gun laws (although a universal background check proposal was narrowly defeated in Maine). Whereas the federal background check system established by the Brady Law only applies to sales by licensed dealers, now nearly half of all Americans are covered by expanded background check laws at the state level, requiring checks for all gun sales. California is a recurring nightmare for the gun lobby; this year’s referendum requiring background checks for ammunition sales, among other restrictions, is just the latest in a long series of California gun control laws passed in the last twenty years.
This state activity occurs because federal law does not preempt state gun law; indeed, there is an express anti-preemption provision in the Gun Control Act of 1968. It is possible the NRA will seek to establish a beachhead of federal preemption, particularly as it affects state restrictions on concealed carry, thus preventing states from restricting concealed carry by their own residents.
The Supreme Court
The NRA knows that President Trump can do the most lasting damage to the nation’s gun laws through his appointments to the United States Supreme Court. Federal and state gun laws were essentially immune from successful Second Amendment attacks until the Supreme Court’s 5-4 ruling in District of Columbia v. Heller in 2008 casting aside established precedent and, for the first time in our history, recognizing an individual right to possess guns in the home for self-defense. That right was extended to protect against infringement by the states in the subsequent decision of McDonald v. City of Chicago. The Heller and McDonald decisions struck down handgun bans in the District of Columbia and Chicago but, to this point, the rulings have not proven to be lethal weapons against other gun laws. This is true for two reasons.
First, in striking down DC’s far-reaching ban on operable handguns in the home, the Heller Court had no occasion to address whether the right extends to carrying guns in public places. Although one federal appeals court has struck down a state law banning all public carrying of guns by extending the Heller right beyond the home, other courts have upheld restrictions on carrying concealed weapons since Heller.
Second, the Heller majority opinion, written by the late Justice Antonin Scalia, substantially qualifies and limits the right to handguns in the home by recognizing that the right is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” and even listing broad categories of gun laws which the Court said remain “presumptively lawful” under the Court’s ruling. By and large, the lower courts have applied Heller in ways that have preserved existing gun laws against legal attack. The Supreme Court thus far has declined to review those decisions upholding gun laws, leading Justice Thomas, joined by Justice Scalia a few months before his death, to dissent from the Court’s denial of certiorari in a case challenging a state assault weapons ban. Justice Thomas accused the lower courts of “relegating the Second Amendment to a second-class right.”
All that could change with President Trump’s first two appointees to the Supreme Court. In his first post-election interview, President-elect Trump emphasized to Leslie Stahl of 60 Minutes that he would nominate justices who are “very pro-Second Amendment.” Although it is difficult to imagine that Trump’s first appointment could be more pro-gun than Justice Scalia, a second Trump appointment could lead to a series of precedents that would erect a barrier to strong gun laws for a generation. It likely would lead to extension of the Heller right outside the home, thus threatening existing state restrictions on carrying concealed weapons. A new pro-gun majority could also render of marginal importance the qualifications and limitations on the right articulated in the Heller opinion itself, which were transparently included to attract a fifth vote (likely Justice Kennedy’s) for striking down DC’s handgun ban, but may be utterly disregarded by a more radical pro-gun majority. Even if modest measures like the Brady Law and state background check laws survive, a new 6-3 pro-gun majority could wipe away stronger state laws, particularly licensing laws that give the authorities a measure of discretion over who is allowed to possess guns, instead of just allowing them to deny guns to individuals who fall into narrow categories of prohibited purchasers. In short, if President Trump is allowed to remake the Supreme Court, it could threaten the gun laws we have, as well as precluding the stronger gun laws we need.
What Can Be Done?
Beginning in 2000, when gun control was inaccurately targeted as a key to Al Gore’s defeat by George W. Bush, until the Sandy Hook shooting in 2012, proponents of stronger gun control laws wandered in the political wilderness. Since the Sandy Hook shooting, the gun control movement has grown more influential by any measure: more activism, more resources and more success. The question now is whether this newly resurgent movement will prove to be an effective bulwark against the NRA onslaught. That will depend on several factors.
First, gun control activists must not surrender to despair and leave the playing field to the NRA. Given the extremism of the NRA’s “guns everywhere” vision of American society, the Trump gun agenda can be an effective vehicle to build on the organizing that has occurred since Sandy Hook. It is clearly possible that much of the pro-gun agenda can be stopped in the Senate, but it will require constant constituent pressure.
Second, it must be made clear to both political parties that the gun control movement is now a potent political force and will remain so. The 2016 election cycle brought a historic infusion of resources from gun control groups into the political process, with Michael Bloomberg’s Everytown for Gun Safety and his Independence USA Super PAC, along with Gabby Giffords’ Americans for Responsible Solutions PAC, leading the way. Their spending contributed to some impressive victories, particularly the successful Nevada referendum to extend background checks to all gun sales, in a state with a record of hostility to gun control, aided by $16 million in spending by gun control forces, as well as the defeat of Republican incumbent Senator Kelly Ayotte in New Hampshire, with the help of $8.8 million in ads hammering her pro-gun votes in the Senate. Significantly, Republican incumbent Senator Pat Toomey of Pennsylvania was reelected, even though he sacrificed NRA support by co-sponsoring a universal background check bill after Sandy Hook. Toomey received the support of Everytown and ARS, which sent a message that gun control forces will exercise their political muscle to support Republicans willing to buck the gun lobby. Going forward, this kind of well-financed, hard-nosed election activity by the gun control movement must become a permanent feature of the political landscape in a way that it has not been in the past.
Third, there will be a formidable progressive coalition opposing President Trump’s Supreme Court nominees and the gun control movement must be an active and influential part of that coalition. On the gun issue, nothing is more important, in the long run, than the composition of the Supreme Court. There must be a powerful mobilization against any nominee who would extend the right to be armed to public places, or who would make that right into an inviolable barrier to sane gun laws.
Leon Wieseltier recently called for “a fierce spirit of opposition” to the Trump Presidency. For all who cannot tolerate the scores of innocent American lives lost every day to gunfire, nothing less will do.
About the Author
Dennis A. Henigan is director of legal and policy analysis at the Campaign for Tobacco-Free Kids and formerly vice president of the Brady Center to Prevent Gun Violence. Follow him on Twitter at @DennisHenigan and visit his website.