THE TRAJECTORY OF FEDERAL GUN CRIMES.

• Date: 01 February 2022
• Author: Charles, Jacob D.

INTRODUCTION

Gun violence is a pervasively American problem. More than 100,000 Americans are injured in shootings each year, and nearly 40,000 are killed. (1) The federal government has largely approached this problem through the lens--and with the tools--of the criminal law. Federal gun charges are a mainstay of federal criminal practice, comprising about ten percent of all federal prosecutions for the past several decades, and a higher percentage in recent years. (2) Some of the most serious mandatory minimum sentences are for gun offenses, when linked to violent and drug-related crimes. (3) As of 2016, about fifteen percent of all persons in federal prisons were convicted of gun offenses that carry a mandatory minimum penalty (4) The trajectory of these federal gun crimes--and the crime-control approach to gun violence itself--helps to explain the steady growth in prosecutions and the stark racial disparities among gun offenders in federal prisons today. (5) It also helps suggest a vision for a way forward. (5)

This Article traces the evolution of the wide spectrum of federal gun crimes, which cover conduct ranging from gun manufacturing, distribution, and sales to use by drug traffickers and the individual possession of guns by those with felony convictions. (7) We show how federal prosecutions adapted to the criminal law priorities of Congress over time. Such charges have increased in recent years, as they did in the early 2000s. (8) More recently, they have become prominent in immigration-related prosecutions, while in the 1980s, drug gangs were the target. (9) Over time, firearms cases have provided vehicles for testing the reach of federal criminal jurisdiction, the use of federal crimes as sentencing enhancements, and the boundaries--and synergies--between federal and local enforcement.

Many observers have raised federalism concerns regarding these developments, including the Supreme Court, in landmark rulings. (10) William Stuntz emphasized: "Local district attorneys can threaten to send drug or gun crime defendants to the nearest U.S. Attorney's office.... Federal law acts as an unfunded mandate, raising state sentencing levels without paying for the increase." (11) The focus has been on what Markus Dubber calls the "offense of possession--whether of drugs, of guns, or anything else--[which] has emerged as the policing device of choice in the war on crime." (12)

We argue that federal gun crimes are not just a microcosm of larger, evolving trends in federal criminal priorities, but rather a distinct--and in many ways unique--body of law that can be better understood as such. (13) They reflect a dynamic in which three factors dominate: (1) legislation is shaped by aggressive interest group lobbying that ends in compromise on harsh punishment; (2) judges and lawmakers dichotomize guns, as between "lawabiding citizens" (14) in contrast to use by thugs and "gangsters"; (1) ' and (3) prosecutorial power is magnified in this area due to the ubiquity of firearms in communities and in criminal activity in the United States, which both permits broad federal jurisdiction and allows prosecutors to use their equally broad discretion to leverage severe sentences to obtain plea bargains. (16) In surveying the nine decades of federal policymaking around gun crimes, we see an increasingly dynamic, interactive approach that bears the marks of these themes. (17) All three branches of government have been critical in shaping the current framework. In the last forty years, Congress has drafted gun crimes expansively, the Executive has enforced them aggressively, and the Supreme Court has interpreted them frequently.

The severe penalties that Congress has prescribed for crimes connected to guns has led to increased prosecutorial power to wield those penalties. The combination of tough laws and tough enforcers has led to a Supreme Court especially active in construing the federal firearms laws. We count more than seventy-five high court opinions since 1937 interpreting the major pieces of federal legislation; almost all of those cases came after the Gun Control Act of 1968. (18) And the Roberts Court has had a special fondness for federal firearms crimes. The Court has heard more than thirty cases arising under these laws since 2005. (19)

Cases concerning federal gun crimes have made blockbuster constitutional law, including under the Second, (20) Fourth, (21) Fifth, (22) Sixth, (23) and Tenth Amendments, (24) as well as with respect to Congress's Commerce Clause authority (25) and taxing power. (26) But these cases have more frequently involved difficult questions of statutory construction, (27) requiring the Court to, in Justice Kagan's pithy phrase, leave the "lofty sphere of constitutionalism for the grittier precincts of criminal law." (28) Since penalties for these crimes have become so severe, the Court's attention to these matters has accordingly taken on heightened importance. (29) The Court, for its part, has often read statutes in the harshest light. (30) As the Court said in one case construing 18 U.S.C. [section] 924(c)'s stiff sentences for use, carrying, or possession of a firearm in connection with certain crimes: "We do not gainsay that [the petitioners] project a rational, less harsh, mode of sentencing. But we do not think it was the mode Congress ordered." (31) And Congress, when it believes the Court has read a statute too leniently, has not hesitated to clarify its purpose by amending statutes to cement more punitive constructions of the law. (32)

The existing literature on federal gun crimes does not give a holistic picture of the history, trends, and effects of this body of law. Most scholarship on gun regulation tends to focus either on the Second Amendment's right to keep and bear arms or on narrow aspects of criminal enforcement or judicial interpretation. (33) The former literature often includes little or no discussion of criminal enforcement, including the severe mandatory minimums penalties that have become an increasingly important part of the federal framework. (34) The latter literature often focuses narrowly on one substantive provision or piece of legislation without linking these to the broader, evolving context. (35) The result is separate literatures about "gun control" and about federal criminal law that speak to different audiences and for different purposes. (36)

This Article bridges that divide. It describes the arc of federal criminal gun laws, from provisions focusing on regulating commercial manufacturing, distribution, and sale of firearms; to an extensive focus on individuals, in order to target a wide range of gun-related but also not-primarily gun-related criminal conduct; to a broader federal, systematic, and collaborative effort to target gun violence. We question why the crime-control paradigm has been central to federal efforts to combat gun violence, how this focus has ignored the underlying causes of that violence, and how the federal government might play a less punitive role.

In Part I, we describe the enactment and substance of the major federal gun crimes legislation. We start in Section A with the beginning of federal firearms regulation-the 1934 National Firearms Act ("NFA"), (37) which levied taxes on manufacturers and owners of certain types of especially dangerous firearms, like machine guns. In Section B, we detail statutes, starting in the late 1960s and continuing through the 1980s and 1990s, that cemented the focus on individual possession offenses and harsh punishment. In Section C, we describe more recent statutes that have focused on upstream regulatory gun laws, like background checks.

In Part II, we discuss how these criminal statutes are enforced. Using U.S. Administrative Office of the Courts data we compiled for this Article, we emphasize how, despite the proliferation of weapons offenses, felon-inpossession offenses have dominated prosecutions beginning in the 1980s, with a steady rise in the number and length of sentences in each decade since. We also describe other changes in enforcement, including the creation of national data-tracking; the building of federal, state, and local partnerships to combat gun violence; and new uses of gun-charges as federal prosecution priorities have changed, including a focus on gun-charges in immigration enforcement.

In Part III, we step back to identify the patterns, probe the pathologies, and chart the path forward to a more reasonable and coherent approach to the federal regulation of guns. We suggest these statutes share a remarkable legislative dynamic, in which powerful interests are arrayed on both sides. A compromise between otherwise antagonistic parties leads to agreement on harsher penalties and more severe punishment. We also describe how institutional forces and administrative enforcement priorities have shaped the use of these statutes. Finally, we examine the two-fold effects of this system on inequality, where under-resourced minoritized communities are both disproportionately victims of gun violence and targeted by federal sentencing. We ask why successful community-based efforts to prevent gun violence have not received strong federal support. And we conclude by asking what principles could guide the development of this body of federal firearms law through judicial interpretation, future legislation, and enforcement towards a new vision in which federal gun efforts serve primarily to prevent gun violence.

1. FEDERAL FIREARMS STATUTES

   This Part provides a three-part account of the evolution of federal gun crimes in the United States. In Section A, we set out the origins of the earliest gun crimes. In Section B, we detail federal statutes that cemented a focus on punishing individual firearm possession and imposing severe sentences. In Section C, we describe more recent statutes that have typically focused on regulatory measures, such as background checks.

   1. Early Federal...