(It’s been a minute so before reading, maybe go refresh your memory with Parts I & II)
[NOTE: Read this post to the important update below]
I begin to write this piece on May 29, Memorial Day. On this day I decided inventory of firearms legislation submitted to the General Assembly in 2023. According to the Rhode Island General Assembly’s website, seventy-five bills were submitted to both chambers of the legislature and referred to their respective committees.
As of today, June 1, seventy-three bills were still being held in committee, one regarding hunting was voted out of committee for a vote by the full chamber, and one regarding elementary and secondary education - House Bill No. 5667 which seems an odd fit in this category - was voted on by the full House and sent on to the Senate.
The overwhelming majority of the bills held in committee are held pending further study. According to this week’s committee calendars none of these bills will be put forward for an up or down vote by the full committee. I guess the studying continues.
Given that our part time legislature is scheduled to adjourn on June 30, there isn’t much time for it to complete its homework. But then, as explained previously, the failure to have moved the bills out of committee may have less to do with the subject matter of bills than it has with the politics that attends them.
As noted in the previous Parts, this is a leadership driven institution. If leadership backs a bill, the chances are exponentially greater of it being passed than if leadership is neutral or opposes it. In fact, if legislation is opposed by leadership then it “ain’t going nowhere.” (h/t to Bob Dylan)
By their nature, legislatures are political institutions performing political functions. If you believe the Schoolhouse Rock version of those functions you believe that the legislature reflects the will of the people. If you believe that elites have inordinate political influence then you believe that at best the popular will is marginalized. And if you believe that there’s too much money in politics then you believe that elective officials auction their services to the highest bidder.
In his book “Political Parties and the Winning of Office,” Joseph Schlesinger wrote that a major, if not prime motivation of politicians is to first get elected and then re-elected. It is through the Prism of electoral success that a legislator decides how to act. And of the three choices above, and clearly there are many more, Schlesinger would argue that an ambitious politician (and aren’t they all?) will decide what motivation(s) and influence(s) will best serve their ambition of holding public office.
Cynical? Pragmatic? Who knows, but to paraphrase Joseph Napolitano in “The Election Game And How To Win It,” in order to be a good officeholder you must first be an officeholder. That’s the reality.
In my view, on the issue of gun reform legislation, popular will seems too attenuated to be much of an influence on legislative behavior. This is where opponents of gun reform have the advantage. The opponents are perceived to be an unlimited source of campaign cash and a motivated, disciplined constituency.
Legislators, always concerned about their electoral prospects in the next election, may not court the gun lobby’s money and votes but are wary of having those two weapons directed to assist any political opponent, especially in a primary where the influence of the popular will is minimal if not negligible.
Perhaps this is why we see more legislation concerning the age of a purchaser of the AR-15 than a ban of all weapons of war. Maybe this is why we see modest progress on background checks being haled as ground breaking legislation. Maybe this is why concealed carry isn’t seriously addressed.
So it is against this backdrop that I discuss the April 17 testimony delivered by the president and vice president of the Second Amendment Coalition to the House Judiciary Committee. In essence, the Coalition’s testimony struck at the more immediate electoral prospects of the legislators: a well financed, organized and motivated group that issued a not so veiled threat for the 2024 election cycle.
The first thing is that the Coalition’s president, an attorney, adopted the W.C. Fields admonition, “If you can't dazzle them with brilliance, baffle them with bullshit.” He reminds me of Trump‘s lawyer Joe Tacopina in the E. Jean Carroll case, exhibiting all the aggressive bluster without any of Tacopina’s charm.
Then he went after the various bills that he opposed, particularly the assault weapons ban, safe storage and concealed weapons legislation, citing the recent Supreme Court case New York State Rifle & Pistol Association, Inc. v. Bruen as the “law of the land.” To him, the discussion was over.
There was a colloquy between the Coalition’s president and the Committee’s vice chair over the application of any legislation (presumably anywhere) that didn’t have its roots in law in 1791. The Coalition president held that assertion as wrapped into the holding of Bruen while the vice-chair asserted that to be mere dicta.
The dicta question may sound like inside baseball but as a legal argument it is quite important. Dicta is a judge‘s opinion about an issue in a case but is not fundamental to the case‘s decision.
Put another way, it could be asserted that my post is dicta.
Since I think that Bruen is a hot steaming pile of “baffle” I’m with the vice-chair on this. I’ll have more to say about this in Part IV.
From there the Coalition president, relying on Bruen, claimed to have successfully litigated various gun cases, even winning $85,000 in attorney fees in one of them. The vice-chair then read a letter from the state Attorney General stating that his office would defend the gun reform bills should they be enacted by the legislature, confident of their constitutionality. The president responded that gun control of any sort was per se unconstitutional.
Then a brief discussion occurred on whether the federal assault weapons ban legislated in the mid 1990s resulted in reduced gun deaths. Arguing that the ban didn’t reduce mass shootings, the president cited a Rand Corporation study of the issue.
In fact, the Rand study, citing six prior studies for its review, found that there was inconclusive evidence of the assault weapons ban impact.
[As an aside, over the 2023 Memorial Day weekend commencing at 5:00 p.m. on Friday evening there were 17 mass shootings, 178 people killed and another 490 injured. Just putting this legislative kabuki into some perspective.]
Then came the desperate attempt at the coup d’grace when the president reminded the committee members that those who voted in favor of the gun reform legislation might have some tough going in the 2024 election cycle.
To me this was a little like “liars poker.” The Second Amendment Coalition is a non-profit corporation formed in Rhode Island. However, there appears no evidence that it is a 501(c)(4) so there’s no tax report on file with the IRS. It does have a PAC but a review of the records at the Board of Elections indicates that they only raise and spend a few thousand of dollars each cycle. Sure it gives money to candidates, but it doesn’t appear that the Coalition is able to raise and spend enough money to make a broad based attack on a significant number of legislators who vote for gun reform legislation.
If there is just one thing the Coalition has going for it that is its affiliation with the National Rifle Association. What impact this affiliation has might be more psychological than actual given its financial woes, declining membership and its impending move from New York to Texas. Not to mention maintaining Wayne LaPierre’s lavish lifestyle. See a report from Moms Demand Action at:
https://momsdemandaction.org/new-report-nra-membership-hits-10-year-low-hemorrhaging-over-1-million-members-since-2019/#:~:text=NRA%20membership%20has%20dropped%20to,the%20lowest%20levels%20since%202012.
In our siloed culture, where we look at individual things separate from all others, we forget that everything we think, say, and do has a broad impact on other elements and people in our environment. We often overlook the intersection between legislatures and the law. Legislatures, especially part-time legislatures, have a tough time grappling with complex policy questions, and few are as complex as gun policy.
It is inherent in the structure of legislatures to pass legislation that addresses policy questions in bite sized pieces. Rather than a more comprehensive approach taken by the executive branch, legislatures take an incremental approach, especially on divisive issues like gun policy.
When all is said and done, it may turnout that the legislature passes one or two of the bills dealing with safe storage, concealed carry, and assault weapons; or it might pass all the bills; or it might vote down all three; or - in my mind this is most likely - continue to hold all the gun legislation for “further study.” Absent robust leadership from the executive, it is unlikely that the legislature will enact, if it enacts anything, any legislation constituting more than a fragmentary gun policy, if that.
Whatever the result, citizens, businesses, lawyers, and courts will have to live with it. Legislatures are political institutions ostensibly required to produce non-political outcomes in the interest of “the people.” On issues like gun reform policy, legislators have to deal with the inherent tension of either acting in their own political interests or the interest of the public as a whole.
Whatever the legislature enacts is subject to legal challenges in the courts. This is where the intersection of legislative outputs and law is most acute. In the area of gun policy, this will often result in a determination whether or not the law violates the constitution. This is exactly the process the Second Amendment Coalition is banking on when it threatened legal challenges to the enactment of any legislation it opposed.
I believe that the constitution has been willfully misinterpreted and thus misused by a judiciary bent on advancing a political agenda. On a variety of issues, our “least dangerous branch“ of government has become its most lethal.
And if you’ll bear with me, that will be the topic of Part IV.
[UPDATE: On the June 1 Rhode Island Report podcast, the Rhode Island Senate President Dominick Ruggerio announced that he didn’t support an assault weapons ban in Rhode Island. Ruggerio said the federal Congress should enact a nationwide ban of these weapons. He thinks state action would be rendered useless as people could go out of state to purchase these guns and bring them back to our state.
Way to go senator, you’ve rendered the General Assembly powerless to address one of the most important public safety and public health issues of our time. So goes the leader driven legislature.]
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