January 1, 2013 by Julia
I don’t watch television news, and if I did, it certainly wouldn’t be anything on NBC. So, I’m not personally familiar with the reporting of one David Gregory, the host of Meet the Press. He’s managed to make himself a news item recently, though, after he became the target of a police investigation. See, Gregory thought it would be an effective tactic when speaking with (interviewing? attacking?) NRA vice president Wayne LaPierre to compare two gun magazines, one small and one high-capacity, with the intent of making the point that the larger one is somehow prima facie bad simply because of its size (I didn’t say that I agreed the tactic was effective or his argument was logical…). The only problem was that Gregory was in Washington, D.C. at the time, where possessing such magazines is illegal:
No person in the District shall possess, sell, or transfer any large capacity ammunition feeding device regardless of whether the device is attached to a firearm.
DC Stat. § 7-2506.01. (I would like to link to the Westlaw text of the D.C. code, but the copying/pasting the link results in a broken link for some reason. Here is a summary of D.C. gun laws, though)
Apparently, NBC employees asked some random friends at ATF if it would be legal to display the magazine, and were told that yes, it would be legal as long as it was empty. Hmmm. That’s not what the law says at all–do you see any mention of empty or loaded magazines in the above text? At any rate, the folks at NBC apparently also asked the D.C. police for permission, and were denied . . . at which point they ignored the police and proceeded with the display anyway. Being in the press immunizes them from prosecution, of course.
Errrr, maybe not.
Anyway, after the story broke that Gregory was under investigation for violating the law, we saw some interesting reactions across the internet. In general, I identified five types of responses:
1. Prosecute Gregory because he broke the law and anyone else who broke the law would have been arrested already;
2. Prosecute Gregory because he wants more of these gun control laws, so let him feel how law-abiding gun owners feel.
3. Don’t prosecute Gregory because he was serving the public interest;
4. Don’t prosecute Gregory because there are too many real criminals out there to waste your time on media stunts; and
5. Don’t prosecute Gregory because he didn’t intend to hurt anyone.
My two cents, as a certified Angry Conservative Lawyer, is this: we should stand back and watch Gregory get prosecuted under the law he supports, and then all contribute to a legal fund to help him appeal his conviction. Hear me out, I promise this makes sense.
I am a devotee of the rule of law. The rule of law encompasses many concepts, but paramount to me is the requirement that the same set of written, codified rules apply in exactly the same way to all people, regardless of circumstances. The courts must develop clear interpretations and tests, which must be consistently applied. I have no problem with courts abrogating older decisions, as long as the new rules and tests are clear, have universal applicability, and are made known to the public as a whole.
Looking at the rule of law in this situation, it is undeniable that Gregory must be prosecuted. Anyone else who was found in possession of a high-capacity magazine would be prosecuted, and the laws must apply equally to Gregory. The high-capacity magazine ban has not been declared unconstitutional or invalid by any court, and is the law of the land in D.C. For Gregory not to be prosecuted would mean the law does not apply equally to him. Arbitrary instances of not applying a law would violate the rule of law.
And yes, I am sympathetic to the idea that a man who advocates creating more of these laws deserves to be hoisted by his own petard after so flagrantly violating one of them. Gregory wants these “gun control” laws, so sure, let him see how silly the broad net of these poorly thought-out laws really is. Hey, he’s only getting what he wants, right?
None of the defenses to an initial prosecution hold any water for me. First, neither intent nor “public interest” have any relationship to the D.C. law. Scroll up and read the text again: merely possessing, selling, or transferring is a violation. This is what we call a strict liability law; there is no scienter (or mens rea, both of which are fancy ways to say “intent”) requirement. The intent of the person possessing, selling, or transferring does not matter, only the act of doing so. Gregory and a guy buying a magazine to shoot at a school are equally guilty of violating this law. Why? Because it’s written that way. Intent is irrelevant. There is also no “public interest” exception–in fact, there are no exceptions at all. If you possess, sell, or transfer a high-capacity magazine, you are guilty, period, end of story.
As for the “Don’t the cops have something better to do with their time?” defense, well, the law is the law. The cops have to enforce the law–ALL OF THE LAWS. And they have to do it even when the perpetrator honestly did not intend anyone harm, too. Besides, might I remind you of James Q. Wilson’s broken window theory? Even minor instances of law-breaking should be pursued, with the intent of preventing other people from committing larger ones. Note that I am talking theoretically here, because as I will set forth below, this law is unconstitutional and should be overturned. But, in general, “small” violations cannot and should not be ignored.
Okay, so Gregory gets prosecuted and gets a fine or three days in jail or something. Good, he deserves it. Now let’s all help him appeal the conviction, because this silly law violates the Constitution in two ways.
There are two types of challenges to the constitutionality of a law: facial challenges (the law is always unconstitutional, in all situations) and as-applied challenges (the law is not always unconstitutional, but has been applied in this one situation in an unconstitutional way). Facial challenges are allegedly disfavored, but they get granted more often than you would think. Here, Gregory has two different theories to challenge the D.C. high-capacity magazine ban, one of each type. There is an as-applied challenge under the First Amendment, and facial challenge under the Second Amendment.
Some of my colleagues on the right have been mocking people like Glenn Thrush for implying that journalists should be immune to this law (you know, in the public interest). Well, not quite. It was right to mock him for requesting special treatment, because Gregory is just as susceptible to the law as the rest of us, and without a court-mandated or legislature-approved carve-out for journalists, he should be prosecuted exactly the same as everyone else. However, applying the law to a journalist for events that occurred while discussing the news is, in fact, an as-applied violation of the First Amendment. To state that there are certain items a member of the press cannot even possess while reporting on those specific items undeniably creates an unfree press. Is it hilariously ironic that Gregory was trying to convince the world to support the very same ban under which he may be prosecuted? Absolutely. In order to have a “free press,” though, we must resist all efforts to restrict what the press is allowed to show us. And yes, that applies even to misinformed “reporters” whose stated intention is denying us other constitutional rights.
Finally, and perhaps most obviously, the D.C. high-capacity magazine ban violates the Second Amendment. To right to bear arms is nonexistent without the right to bear the ammunition for those arms–and I don’t see a caveat in the Second Amendment listing acceptable ways to carry that ammunition or insert it into a weapon. Until the Second Amendment is modified through further amendment(s), the D.C. law is unconstitutional on its face. The trial court is highly unlikely to reach that conclusion, but an appellate court can and should.
To stay true to our values, we much uphold the rule of law . . . along with our free press and right to bear arms. These things are part of what makes America so special. Therefore, let’s prosecute David Gregory, and then help him overturn the conviction. It’s the only way to avoid ceding any of our rights and freedoms.