Displaying all the illogic that Congress is infamous for, the Senate voted Thursday to proceed with a gun-regulation bill, the contents of which were unknown to virtually all senators and the text of which didn’t arrive until hours later. Such is the state of lawmaking today.
That said, once the text on background-check expansion was revealed, there was little to take issue with — other than the objection to all such anti-gun measures, namely that they are useless panaceas. Sens. Joe Manchin (D-W.Va.) and Pat Toomey (R-Pa.) came up with a background-check expansion proposal that exempted transfers to family members and friends and continued to prohibit a national gun registry, the two main complaints of Second Amendment advocates. Toomey cleverly got conservative legal scholar John Yoo to opine on the constitutionality of the measure. In a letter Yoo explained, citing the seminal Heller v. District of Columbia Supreme Court decision:
Most pertinent here, the Court included examples of “presumptively lawful regulatory measures.” According to the majority, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” . . .
A background check system is not in itself a restriction of the Second Amendment right to keep and bear arms. It is only a means to ensure that sellers of firearms do not transfer handguns to a prohibited classes of owners. Indeed, the background check system would appear to be a vital mechanism to ensure that firearms sellers do not violate the terms of the national Gun Control Act. These restrictions have existed in federal law for 45 years and have not been constitutionally invalidated by the courts.
Yoo concludes that “the expansion of the background check system will more effectively achieve the purposes of the 1968 Gun Control Act.”
Senators can certainly argue the background check is useless or that it is wrong to inflict any hardship on lawful gun owners, but at this point the only real objection to the background check is that there should be no more anti-gun legislation at all. Toomey, it appears, reduced the background-check bill to the level of a mere nuisance for legal gun owners.
Before that analysis was available, however, the Senate voted 68 to 31 to move to debate on the bill. That vote is meaningless, with two exceptions. The 16 Republicans and some of the Democrats who voted simply to debate the measure likely will not support ending debate nor the bill. In fact, it is almost certain that some Democrats will defect. That is because those two exceptions — Democratic Sens. Mark Pryor and Mark Begich — voted against proceeding to debate. They almost certainly will be no votes at the end and thereby will encourage other red-state senators to jump ship. (Democratic Sen. Max Baucus was already sounding fully aware that Montana voters wouldn’t like more anti-gun laws.)
Recognizing that any measure will still have to go through the House (where it will be a hard sell, no matter what is in it), the vote becomes a test for the White House and red-state Democrats. Does the latter risk a vote that, next to their support for Obamacare, may be the most fateful in their term? And really, what protection can the president (who’s virtually taken up residence in Connecticut) afford to senators from Alaska, Arkansas, Louisiana, North Carolina, Montana and the rest? Not much, I would strongly suggest.
The question remains as to whether any yes vote will be impossible for the red-state Democratic senators or whether they will be frantic to find some diluted legislation that can satisfy the White House and not signal the end of their Senate careers.