The Trajectory of Federal Gun Crimes

76 Pages Posted: 21 Oct 2020

See all articles by Jacob Charles

Jacob Charles

Duke University School of Law

Brandon L. Garrett

Duke University School of Law

Date Written: August 1, 2020

Abstract

Federal gun prosecutions have for decades been a growing part of the federal docket, reflecting not only the priority placed on reducing gun violence, but also a broad range of quite distinct federal priorities. In this Article, we explore for the first time the evolution of federal gun crimes. They cover conduct ranging from gun distribution, possession of particular weapons such as machine guns, use by drug traffickers, and individual possession of firearms by felons. Second, we describe how in practice, uses of enacted gun crimes have adapted to criminal law priorities of Congress and federal prosecutors over time. Most recently, they became prominent in immigration prosecutions, while in the 1980s, drug gangs were the priority. In so doing, gun cases provided vehicles for testing the reach of federal jurisdiction, use of federal crimes as sentencing enhancements, and boundaries between federal, state, and local enforcement. We argue federal gun crimes reflect a unique dynamic in which legislation is shaped by three forces: (1) aggressive interest group lobbying that ends in compromise on harsh punishment; (2) judges and lawmakers dichotomizing guns, as between “law-abiding citizens” and use by “thugs” and “gangsters”; and (3) prosecutorial power, magnified due to ubiquity of firearms, permitting broad federal jurisdiction, and then leveraging the discretion of federal prosecutors to utilize severe sentences to obtain plea bargains. Our overall goal is to illuminate the central, but inconsistent and complex, place of gun crimes in federal criminal law. We conclude by asking what principles could guide the development of this body of law through judicial interpretation, future legislation, and in enforcement, towards a new vision in which federal law is designed to reduce disparities in enforcement and to prevent gun violence.

Keywords: Federal Criminal Law, Sentencing, Gun Crimes, Gun Violence, Second Amendment

Suggested Citation

Charles, Jacob and Garrett, Brandon L., The Trajectory of Federal Gun Crimes (August 1, 2020). Duke Law School Public Law & Legal Theory Series No. 2020-69, Available at SSRN: https://ssrn.com/abstract=3685910 or http://dx.doi.org/10.2139/ssrn.3685910

Jacob Charles

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

HOME PAGE: http://https://law.duke.edu/facstaff/directory/charlesj/

Brandon L. Garrett (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)

HOME PAGE: http://www.brandonlgarrett.com/

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