Are Any Gun Laws “Super-Statutes”?

  • Date:
  • July 06, 2020

In their fascinating 2001 Article in the Duke Law Journal, “Super-Statutes,” William Eskridge and John Ferejohn described how some statutes are more important than other ordinary pieces of legislation, like those that settle the budget or cover a narrow and specific topic. Some intend to and do in fact “penetrate public normative and institutional culture in a deep way.” These—the titular “super-statutes”—are identified by three characteristics: they “(1) seek[] to establish a new normative or institutional framework for state policy and (2) over time do[] ‘stick’ in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law—including an effect beyond the four corners of the statute.” Would any gun laws qualify?

Two pieces of federal gun regulations come to mind as potential super-statutes: (1) the Gun Control Act of 1968 (GCA), and (2) the 1993 Brady Act. (My colleague Brandon Garrett and I are currently at work on an article tracing the trajectory of these and other federal gun crimes.) The GCA was a landmark piece of legislation in 1968, even though it achieved far less than its proponents and President Johnson wanted. It was the first major federal gun law in three decades and reshaped the regulatory regime governing manufacturing, distribution, sales, and possession of firearms. It required that all persons in the business of firearm manufacturing, distribution, or sales get a federal license. (The 1986 Firearm Owners Protection Act would narrow what qualifies as “engaged in the business” requiring licensure.) It banned several groups, most notably those with prior felony convictions, from possessing firearms for life. And it created a separate crime with separate punishment for anyone using or carrying a gun when committing a federal felony. This new regime certainly seems to satisfy the requirements for a super-statute: (1) the law created a new institutional framework; (2) the culture has largely accepted these restrictions as baseline (see, e.g. Heller’s sanction of “longstanding prohibitions on the possession of firearms by felons and the mentally ill” and “laws imposing conditions and qualifications on the commercial sale of arms”; and (3) this framework has had a large effect on the law, including beyond the four corners of the statute, such as how it has influenced and aided federal law enforcement efforts to police violent crime.

Next, take the Brady Act. The Brady Act instituted a five-business-day waiting period for handgun purchases, which lasted for 5 years before the National Instant Background Check System (NICS) came online in 1998. The law requires federal firearm licensees—like gun shops—to contact the FBI (or a state contact) to run a background check before selling a firearm. This too seems to fit the bill. The instant check system was certainly novel, the normative effort has seeped into culture (it’s hard to imagine a serious effort to eliminate the background-check requirement), and it has had an effect on the law that extends beyond its four corners, including generating a blockbuster constitutional decision (that extends far beyond firearms) in Printz v. United States.

Both the GCA and Brady Act, like Eskridge & Ferejohn’s typical super-statutes, were “enacted only after lengthy normative debate about a vexing social or economic problem.” Congress debated what would become the GCA for more than five years. The Brady Act took even longer. The first version of the bill was introduced in 1987. It was filibustered in the Senate and didn’t pass until Clinton won election despite previously picking up support from former Presidents Nixon, Ford, Carter—and even Reagan. (Here’s the first NRA-endorsed presidential candidate, Ronald Reagan, arguing in a New York Times op-ed for the Brady bill and a waiting period for handgun purchases—and touting that he signed into law a 15-day handgun waiting period as governor of California.) If, as Eskridge & Ferejohn argue, “[t]he key to super-statutedom is acceptance in public culture,” then both the GCA and the Brady Act appear to qualify. Even in the deregulatory efforts of the 1980s, which saw the rollback of some GCA provisions, and the strong Second Amendment movement that culminated in Heller, neither the GCA nor (later) the Brady Act seemed to be seriously under threat.

What’s the upshot? Well, “[a] super-statute embodies a fundamental principle that has a claim to be deeply embedded in our national aspirations.” It functions as quasi-constitutional law, providing an outlet for popular sovereignty movements to shape and inform the Court and the legislature about what We the People value. “One test of a super-statute,” Eskridge & Ferejohn write, “is that whatever the circumstances of its enactment, it instantiates a principle that passes the test of time: it works, it appeals to multiple generations, and it sticks in the public culture.” By these metrics, the current regulatory regime governing firearms appears to fit.