The day after the horrific mass shooting at Sandy Hook Elementary School in Newtown, Connecticut, Barack Obama fought back tears. “We’ve endured too many of these tragedies in the past few years,” he said. “The majority of those who died today were children, beautiful little kids between the ages of five and ten. They had their entire lives ahead of them, birthdays, graduations, weddings, kids of their own.” When the president said Americans were “going to have to come together to prevent more tragedies like this, regardless of the politics,” it looked as if new federal gun laws were inevitable. Polls showed significant majorities in support of universal background checks and restrictions on military-style rifles, and many in Washington were beginning to question the power of the NRA after the gun rights group’s favored candidates fared poorly in the November elections.
Today, just four months later, the Senate all but dashed any hope for meaningful reform from Congress. What happened? Where did the president, who was at the height of his political influence after his reelection in November, go wrong?
After Newtown, it was clear to everyone on the gun control side that speed was of the essence. The longer it took to move a bill to the floor for a vote, the harder it would be to win. In recognition of this, President Obama appeared to act quickly. He appointed a special commission headed up by Joe Biden to come up with proposals, then gave the commission a tight deadline of mid-January to make its recommendations.
While the commission acted unusually fast by Washington standards, in effect it served to delay unnecessarily the announcement of proposed reforms. All of the major proposals of the Biden commission were well known to anyone who has followed the gun debate: universal background checks, bans on assault weapons, and restrictions on high-capacity magazines. For this hardly innovative set of reforms, Obama didn’t need to wait three weeks. Gun control groups like the Brady Center and Mayors Against Illegal Guns could have offered him draft legislation on these reforms within days.
Congressional consideration was also delayed by gun control proponents’ insistence on a ban on assault weapons. This was a nonstarter to begin with; nearly everyone familiar with gun politics recognized that such a ban would never pass the House even if it made it through the less conservative Senate. Even if the law could be passed, it wouldn’t have made any dent in gun violence statistics because these guns are rarely used in crime. There was only one certain outcome from proposing to ban assault weapons: It was guaranteed to stimulate the fiercest opposition.
Focusing on assault weapons played right into the hands of the NRA, which has for years been saying that Obama wanted to ban guns. Gun control advocates ridiculed that idea—then proposed to ban the most popular rifle in America.
Gun control advocates have told me the assault weapons ban was intended to be a bargaining chip. Ask for the moon, settle for less—in this case, universal background checks. If that was the strategy, it backfired. For most of February and March, gun advocates focused their criticisms on the assault weapons ban. They correctly observed that it outlawed guns but did nothing to keep outlaws from having guns. And they used the time to organize their base, comprised largely of gun owners who love the AR-15 and its variations. Many gun owners might have supported background checks had they not been distracted by the assault weapons issue, which caused them to distrust gun control proponents even more than before.
The proposal to ban assault weapons also led to the Senate spending precious time holding hearings on the merits of the ban. Given this proposal was going nowhere, why waste the time? If President Obama had pushed for a law only requiring universal background checks—maybe coupled with the NRA’s proposal for more funding for school security—he might have been able to persuade Congress to consider his proposals in February, when Newtown was fresher in our collective memory.
The four-month delay enabled the NRA to rally its troops—and, more importantly, its allies in Congress. Senators like Texas’s Ted Cruz adopted the NRA’s well-worn playbook in defeating gun laws: insist that any new law will violate the Second Amendment and lead to a national registry that will be used to confiscate all our guns. None of the major proposals, however, were likely to be invalidated by the courts on Second Amendment grounds. The courts have repeatedly held that laws to prevent criminals and the mentally ill from obtaining guns are constitutionally permissible, and also approved of restrictions on assault rifles.
Nor will expanded background checks lead to a national gun registry. In fact, specific provisions of the Manchin/Toomey proposal made the creation of a national registry a crime punishable by fifteen years, to go with earlier federal rules requiring the destruction of background check records. Indeed, just before the Senate voted on Wednesday, Cruz himself admitted that Manchin/Toomey wouldn’t authorize a registry. “I don’t disagree that on its face, the currently pending legislation does not purport to create a national gun registry,” he said. But “the next step in the process would be that critics would say, ‘Well this isn’t effective. We don’t know if you’re selling your firearm to someone else unless we know you have your firearm.’” This kind of slippery slope fear mongering probably doesn’t work with many Americans, but can sway die-hard pro-gun voters. And those voters can sway elections.
The results of the four-month delay can be seen in public opinion polls. One recent poll showed that support for stricter gun laws has declined more than 15% since January. A majority of Americans also say they disapprove of President Obama’s handling of the gun issue. Lawmakers in Congress see these numbers—especially senators in competitive districts or those worried about a primary challenge from the right.
In fairness to the administration, perhaps nothing would have been different had a universal background check bill been voted on in February or even January. The NRA would still have fought hard and many elected officials would still have been hesitant to support gun control. Ultimately, most of the blame for the failure of new guns laws belongs to gun control opponents, who see every gun law as the beginning of the end of gun rights.
The administration, however, knew that going in. Obviously, the administration’s strategy for overcoming the NRA and its allies didn’t work. Gun control advocates who’ve sought universal background checks for decades, only to be disappointed time after time, have only to wonder what might have been.
Adam Winkler teaches law at UCLA.