Kostas Moros - Did Congress go too far with its gun ban?

 A federal appeals court is reconsidering whether Congress had the constitutional authority to make it a federal crime for convicted felons to possess firearms. Could the case redefine the limits of federal power under the Commerce Clause? Kostas Moros is Director of Legal Research and Education at the Second Amendment Foundation. He joins the show to discuss United States v. Squire and its potential impact on federal firearms law. 

Transcript

SPEAKER_01 0:09

Hey, welcome back to the Lars Larson Show. So, Congress, can Congress actually make a federal crime for a convicted felon to possess a gun? Well, that's the one that's on the books right now. One court is about to test the limits of Washington's power. I thought we'd get Costas Moros on, who's director of legal research at the Second Amendment Foundation. Costas, welcome back to the program.

SPEAKER_00 0:32

Thanks for having me on my pleasure.

SPEAKER_01 0:35

See, now I'm I I'm a gun owner, I'm pro-Second Amendment, but when I've had people challenge me over the years and say, hey, so are you in favor of any gun laws? I said, well, restricting the purchase of guns by convicted felons does seem in most cases like a sensible thing to do. Although if somebody said, Would you entertain the idea that, say, uh financial crimes that are felonies uh might be exempted from that treatment, I might say, yeah, okay, for some of the nonviolent, you know, crimes, um signing a voter registration card uh when when in fact the information is not accurate, that's technically a felony. But other than that, if you're convicted of murder, rape, robbery, criminal assault, things like that, I don't want you to own a gun. So does Congress have the power to decide that or not?

SPEAKER_00 1:24

Yeah, so it's it's a great point, and it's one we generally agree with. Violent people shouldn't have guns, and I'd even expand the list to include people like child pornographers and stuff like that.

SPEAKER_01 1:33

Oh, I would too totally nonviolent crime, but yeah, that's a great example. We're just trying to think of other examples of felonies that would qualify.

SPEAKER_00 1:42

Absolutely. But this isn't a question about who should have guns, it's about congressional power and the expansion of the federal government. So I want to be clear in everything I'm about to say. Nothing about what I'm about to say would mean that a state can't ban this. And I would say a state should absolutely continue to prevent violent people from having guns. So that could be a matter of state law. But what the commerce clause says is that Congress has the power to regulate commerce between the states. And in the modern era, since the New Deal, we've expanded that dramatically to cover all sorts of stuff that has nothing to do with commerce. So if, for example, in this case, a felon has a gun, well, they'll say, well, at some point that gun crossed state lines, so that's commerce. And that's just a ridiculous interpretation and not at all what the founders intended. So this is really about congressional power, not about who should have guns, in my opinion.

SPEAKER_01 2:32

Is this challenge going to be successful in challenging whether Congress has the authority to do this?

SPEAKER_00 2:38

It might be successful in the Fifth Circuit, because the Fifth Circuit's a very conservative, originalist court, and they might take the position that, like I just said, yes, we don't want violent people to have guns, but that's a matter of state law. It's not about uh it Congress doesn't have the power to regulate it unless it's dealing with an actual interstate crime. Now, what I suspect will happen after that, though, if they do rule that way, is the Supreme Court will disagree. And they'll disagree not because I think the Fifth Circuit's necessarily wrong, but because of how disruptive this would be. Because for almost a century now, since the New Deal era when FDR bullied the Supreme Court to his will, essentially, uh, a lot of federal law is based on this commerce clause interpretation. So if they agreed, if the Fifth Circuit succeeds here and the Supreme Court upholds them, they'd essentially have to shrink the federal government uh and and do a lot and stop it from doing a lot of the stuff it currently does, which I would love, but I know I acknowledge would be disruptive.

SPEAKER_01 3:37

Costas Moros is director of legal research at the Second Amendment Foundation. So what do you know about the actual case they're considering? This is United States versus Squire. What's it about?

SPEAKER_00 3:48

I mean, well, it's about it's about a criminal with gun. There's no I'm not gonna sugarcoat it. This guy's not not good news. You know, but again, it's it's something I think the state law should handle, in my opinion. You know, there's nothing wrong with states uh restricting this, and and the founders always intended for states to be the ones that are the more direct handlers of crimes, whereas the federal government isn't supposed to be in that business except for certain crimes.

SPEAKER_01 4:13

Costas, are there any states out there that don't currently have a limit on convicted felons buying guns? Because I can't think of one.

SPEAKER_00 4:22

No, there isn't. There isn't. And that's why it's not a real concern. I know there there's gonna be a lot of uh dooming out there about this case that oh, they're gonna let violent felons have guns. No, it's just it's a question of federal power. Uh, you know, this person would all already not be allowed to own guns uh under state law.

SPEAKER_01 4:39

So well, and and like you said, are there some categories that need to be added to this, like say purveyors of child pornography? Because even though it's not a violent crime, as far as I'm concerned, the creation of child pornography has done violence to children, and that would be enough to put me, uh to have me put those people on the ban list.

SPEAKER_00 4:58

Yeah, absolutely. Federal law already covers any felony, even nonviolent ones, and some of that should be corrected, but not child pornographers is that example. Absolutely, they should not be armed. Uh, I'm not sure if all of state law gets that specific, but that's easy enough to correct, right? If this law were to go away, then states would just have to take a look at their own laws and and adapt them uh to these crimes to make sure everything's covered.

SPEAKER_01 5:21

But like you said, mo all the states currently have those laws, so it kind of becomes just a you know what, how many angels can dance on the head of the pen and letting the Supreme Court make the decision about that?

SPEAKER_00 5:33

Yeah, exactly. I think I I'm not sure if every state covers every single felony the federal government does, but all of them cover violent criminals, and I'm pretty sure all of them cover these crimes of severe moral turpitude. But we shouldn't let that get in the way of the fact that, you know, the federal government has grown to such enormous size in an unconstitutional manner, in my opinion. Um and so it ri you know, it's just a matter of who regulates it. It's not a matter of whether it should be regulated.

SPEAKER_01 6:00

You know, Costas, even though I'm pro-Second Amendment, uh, one of the ones that's frustrated me the greatest is that when they catch people doing a straw purchase, where a criminal sends somebody else in to buy the gun for the criminal. I every time I see one of those cases coming out of the U.S. attorney's office, and then I see, oh, they caught this guy with 34 straw purchases, and he gets 34 months in federal prison, I wonder, he probably views that as the as the cost of doing business. It's not much of a penalty. Have we seen much of a change in that? Because I'd love to, you know, if because ordinarily when criminals are buying guns, it's usually to put them in the hands of other criminals, which make them more likely to be used against people. Um, you know, this is this is not just some garden variety person who's saying, I want to be able to buy a gun. They're buying guns to put hands in the uh guns in the hands of criminals. Shouldn't we be stopping that?

SPEAKER_00 6:53

Absolutely. You know, it's not even just the federal government that's the problem there. California, which is famous as one of the strictest gun control states, actually has a database of armed prohibited people. These are people they, because of their registry, they know for a fact are prohibited people who are now who are armed, and they haven't gone and arrested or at least taken their guns. There's thousands of these people. Yeah, they know they exist, and they just say, well, we don't have the resources to get to all of them. But they do have the resources to pass all other sorts of nonsense.

SPEAKER_01 7:22

Well, and Costas, when I hear the resources argument, I just say, why don't you just send these lists out to all the police departments and say, on one of those days, and we all hit those days where not much is going on, hey, let's go by and see Fred Smith. Fred is a prohibited person who has a gun. We can go do a pop today and we'll actually liven up an otherwise dull day. Is there any reason that even the busiest police department in America, like Los Angeles, couldn't afford to do that from time to time?

SPEAKER_00 7:52

You would think, I know, take a break from the parking tickets. I know those generate revenue and go get and go get some dangerous people off the streets. Absolutely. Yeah.

SPEAKER_01 8:00

And I would think that some of the cops would be, great, I can actually arrest a real criminal for a change. That is Costas Moros, who's director of legal research and education at the Second Amendment Foundation. Uh, glad to get your phone calls and your emails at 866-HLars. That's 866-439-5277. Send your emails to talk at LarsLarson.com. Check me out on Instagram, and you can always tell Alexa to play the Lars Larson show. Oh, you can stream in podcasts too. And the best place to do that, LarsLarson.com.