Derek M. Cohen, Ph.D, is the Vice President of Policy and Right on Crime Senior Fellow. Previously the director of Right on Crime, the Foundation’s criminal justice reform initiative, Cohen was instrumental in the passage of the First Step Act, federal legislation that borrowed from successful changes to prisons and sentencing that he had helped pass in conservative states. In addition to leading the Foundation’s work on criminal justice, he is also the lead researcher of firearms policy.
Randy Petersen is a former senior researcher at the Texas Public Policy Foundation. Petersen spent twenty-one years in law enforcement in Bloomingdale, Illinois, working in patrol, investigations, administration, and management. After retiring from the Bloomingdale Police Department, Randy moved to Texas where he was the Director of the Tarrant County College District Criminal Justice Training Center, one of the busiest police academies in the state.
It comes as no surprise former Vice President Joe Biden and Senator Kamala Harris are campaigning on promises “to end our gun-violence epidemic.” The leftward drift of the Democratic Party on most policy questions, including lawful firearm ownership, has been made explicit in its 2020 party platform. The presidential nominee’s campaign “issues page” takes it several steps further, promising to pass or incentivize all manner of gun restrictions.
In addition to the lack of evidence supporting these initiatives and their dubious constitutionality they all share one principal problem: The federal government — the helm of which Joe Biden seeks to occupy — has very little authority in this domain. In order to accomplish these policy aims, state and local law-enforcement agencies would need to be pressed into service.
Biden has already had his wrist slapped in this regard. His website touts his “shepherding” of the Brady Handgun Violence Prevention Act, a bill most known for the again-promised “assault-weapons ban.” The ban later expired in 2004, with rates of firearm violence actually trending lower after its expiration than during its effect.
Among other provisions, the bill also required that local chief law enforcement officers (CLEOs) perform background checks on prospective firearm purchasers. Jay Printz, sheriff of Ravalli County, Mont., brought suit against the United States, stating that the federal government had no authority to compel state and local officials to execute federal law. In Printz v. United States, the U.S. Supreme Court agreed, holding that despite the increasingly expansive interpretation of the “necessary and proper” clause, Congress cannot enjoin state officials to do its bidding. As a result, the mandate was subsequently ejected from the Brady Bill.
Harris’s understanding of the Second Amendment within our system of federalism is even more stunted. As the attorney general of California, she signed on to an amicus brief claiming that governments have complete authority to wholly ban handguns — an assertion that has been repeatedly rejected by courts and historians alike. During her presidential run in 2019, she promised to enact her preferred elements of gun control via executive orders, none of which were within the realm of executive control. Paradoxically, she is seeking to leave the one body that could enact substantive reform without so much as ceremonially filing legislation to do what she is promising.
However, post-Printz, a largely weak Congress and an expansive executive branch have found another way to force their will on individuals in areas traditionally regulated by state law: via debt-financed federal purse. “Simply do X,” the federal government promises, “and make yourself eligible for Y amount of dollars through the new Z grant program! You are leaving money on the table by not doing so!” Of course, the messaging always fails to mention that it is your money as a taxpayer being left upon the proverbial table.
The word “incentive” or “incentivize” appears no fewer than five times in Biden’s gun-control agenda, seeking to “nudge” state policymaking in firearm and policing policy. State and local governments, none of which have their own money-printing press or central bank, must balance their needs with their limited resources and might be tempted to abdicate their responsibilities for quick cash.
This puts police officers in a bind. Having sworn an oath to uphold state and federal constitutions and local, state, and federal laws, what is their proper course of action if a supine Congress — under the prodding of an overreaching executive — incentivizes demonstrably unconstitutional behavior from state and local governments?