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The Latest Gun Control Fiasco

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The nation’s police forces are up in arms over a new federal gun control law that could strip thousands of them of their guns and jobs. Most police organizations have enthusiastically supported every gun control scheme President Clinton has put forward. Few Americans realized that such legislation almost always contained an exemption for the policemen themselves regarding their official duties. But poetic justice may finally have arrived. Unfortunately, its arrival also heralds the decimation of constitutional rights of a million or more other Americans.

Last September 28, as part of a massive appropriations bill, Congress passed the so-called Lautenberg Act, which greatly increases the number of Americans prohibited by federal law from owning firearms. For the first time, thanks to an amendment by Georgia’s Rep. Bob Barr, law-enforcement officials are not exempt from the nation’s gun control laws.

The Lautenberg Act prohibits anyone from owning a gun or possessing any ammunition who has ever been convicted of a misdemeanor involving the use or attempted use of physical force or the threatened use of a deadly weapon against a spouse, child, or intimate partner. (People with any felony conviction have been prohibited from owning guns since 1968.) Any person with such a misdemeanor on his record who is found in possession of a gun or even of a single bullet can face a $250,000 fine and 10 years in prison — longer than the average convicted murderer serves in this country.

Gerald Arenberg, executive director of the National Association of Chiefs of Police, observed that the act “has thrown the whole world into confusion for cops.” Victor Kappeler, director of the Criminal Justice Graduate Program at Eastern Kentucky University, estimated that if accurate reporting of all such police domestic violence occurred, and if all such assaults were fully prosecuted, 10% of the nation’s law-enforcement officials (70,000 individuals) could be found guilty and thus banned from possessing a firearm under the new law.

The National Association of Police Organizations is calling for Congress to amend the law to exempt police. Beth Weaver, a NAPO spokesman, complained: “What we are concerned about is that law enforcement officers are the only group of workers in the country who stand to lose their jobs because of this new regulation.” Rep. Bart Stupak, a Michigan Republican, introduced a bill in the new Congress to exempt policemen from the new law.

The fact that such a bill would be openly proposed symbolizes how much contempt congressmen now have for the rule of law — the principle that the same law should apply to all. Perhaps some congressmen believe that possessing a government badge should be interpreted as having a federal license for wife beating. Perhaps the police need to be exempt from the law in order to have sufficient personnel to take away other people’s guns.

Congress has cast a far wider antigun net than most Americans realize. A Fraternal Order of Police analysis noted: “Current trends in law and public policy seem intent on expanding the definition of ‘domestic violence’ to clearly nonviolent offenses.” State laws on “domestic violence” are totally inconsistent; some states even define “trespassing” as an act of domestic violence. Early in the Clinton administration, Hillary Clinton was widely rumored to have thrown a lamp at her husband; if she did, she is guilty of domestic violence and thus could be forever prohibited from owning an Uzi. In some states, a husband who mimicked Jackie Gleason and shook his fist in the air towards his wife while huffing, “One of these days, Alice!” could be permanently stripped of his right to own firearms.

University of Maryland professor Lawrence Sherman noted: “When you touch people for the purpose of inflicting pain or fear of pain — many states will define that in their case law as an assault. Many of the arrests [from domestic violence] are based on such things as shoves” — rather than knock-down punches or chairs broken over people’s heads.

The new law could also provide vigilante prosecutors with the power to seize the guns of parents who are not following Dr. Spock’s child-rearing recommendations. According to Chris Klicka, director of the National Center for Home Education, “There is a move across the country by child rights groups to outlaw corporal punishment. In a few instances, families have been found guilty of abusing their children as a result of spanking — not that the children were hurt or anything.”

Bogus charges of domestic violence are routinely used as tactics in divorce proceedings, and many people who plea-bargained 20 years ago on such a charge and paid a small court fine (instead of spending $5,000 in legal fees to defend themselves) will be surprised to discover that they have lost one of their constitutional rights. Dr. Peter Proctor, a forensic expert in Houston, observed: “Many domestic violence charges are false — perhaps as many as one-third where child custody or divorce issues are involved.”

New Jersey Democrat Sen. Frank Lautenberg described his bill on the Senate floor on August 2: “My amendment stands for the simple proposition that if you beat your wife . . . you should not have a gun.” However, contrary to such rhetoric, women are not exempt from the new law and are increasingly likely to be stripped of the means of self-defense by its provisions. It was a common saying in the old West: “God made man, but Col. Colt made him equal.” And firearms are the best chance that many women have to defend themselves against men who are far stronger physically. Sarah Thompson, a Utah doctor and gun-rights activist, observed: “Since both partners are often charged in domestic violence disputes, it effectively prevents battered women from obtaining the safest and most reliable form of self defense, a gun.”

Many localities now require police to make arrests when answering domestic violence calls, and some Virginia counties have seen a tripling of domestic abuse charges against women in recent years. Jeanne MacLeod, director of the Maryland Network against Domestic Violence, told the Washington Post: “I think there are many cases when women are being victimized by the mandatory arrest policies. You tell the police they have to arrest someone, and sometimes they can’t tell who did what to whom, and they’ll arrest both people to safeguard themselves.”

Disarming women can have deadly consequences. Polly Pryzbyl, a Cheektowaga, New York, woman, was murdered by her husband in August 1994 after police took away her guns. A few days earlier, she had separated from her husband and taken her children with her to her mother’s house. He came to her mother’s house and threatened her; she brandished a pistol to force him to back off. Police arrived and seized her gun. A week later, she and her mother went to her husband’s house to pick up clothing for the children; he stepped out of the house and gunned them both down.

Many congressmen supported the law because some prosecutors routinely plea-bargain serious offenses down to misdemeanor charges. Thus, since some prosecutors accept foolish plea bargains that compromise public safety, the federal government is entitled to treat everyone who has committed certain misdemeanors as if they were dangerous felons. This is like assuming that everyone who was ticketed for jaywalking was actually in the process of crossing a street to blow up a government building.

Some jurisdictions have been criminally negligent in prosecuting and incarcerating people (almost entirely men) who repeatedly use severe physical force against their spouse. The solution is to jail the bad apples, not to presume that anyone with a citation on his record must be stripped of the means of self-defense. It makes no sense to reward lousy judgments or laziness by government prosecutors by further increasing their power over private citizens.

Congress held no hearings on this act before it was enacted, and most congressmen will probably be surprised at the police backlash against the law. Professor Sherman estimated that 100,000 to 150,000 Americans are convicted of domestic violence each year. Since this act is retroactive to the first term of George Washington, several million Americans may have lost the right to own firearms. Thanks to the Lautenberg Act, there are probably at least one million new felons in this nation — people with misdemeanor domestic conflict convictions who retain their firearms because they are unaware of their duty to disarm themselves.

This law will provide a golden opportunity for selective prosecution of gun owners. The Portland Press-Herald of Portland, Maine, reported in February: “U.S. Attorney Jay P. McCloskey said his office will not prosecute every offender. The aim instead will be to make a public example of a handful of violators as a deterrent to others.” The new law contains an asset-forfeiture provision, which could be a further incentive for some police departments to go out and build up their own gun collections. For instance, police could check the records of people seen at gun shows and then, if a violation is found, go to their house and confiscate all their firearms.

This act symbolizes the creeping criminalization of gun ownership in America. It is the first time that a misdemeanor offense has been used to strip any American of a constitutional right. The antigun forces in Washington and Congress have made clear that they believe that Americans should be disarmed. Rep. Major Owens, a New York Democrat, responded to the growing recognition of the Bill of Rights’ true meaning by proposing a bill in 1993 to repeal the Second Amendment. Sen. John Chafee, a Rhode Island Republican, proposed a bill to require government confiscation of almost all of the more than 60 million privately owned handguns in the nation.

If the Lautenberg Act is allowed to stand as law of the land, it is certain that the antigun forces will come back with new lists of misdemeanors to justify stripping Americans of their firearms. The fact that congressmen are openly calling for exemptions for federal and state law enforcement from federal gun laws symbolizes the creation of a two-class society in America: the disarmers and the disarmed.

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    James Bovard serves as policy advisor to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.