Opinion: The Backdoor Solution to Gun Reform in America

In the wake of yet another school shooting last week in Uvalde, Texas, the urgency of enacting common sense gun measures nationwide is clear. Yet President Joe Biden has stated that some of the most meaningful measures at the federal level must be passed by Congress, since he lacks constitutional authority to enact key gun reforms through executive order.

Congress, for its part, remains largely gridlocked on the issue, and its current Democrat-sponsored gun reform package – which includes raising the federal legal age to purchase rifles like the AR-15 used in Uvalde from 18 to 21 years, restricting large capacity magazines, regulating gun storage and banning certain types of weapons, like ghost guns – is unlikely to obtain the needed 60 votes in the Senate.

But Congress should not overlook its most powerful tool to achieve these same goals at the state level: the power of the purse.

The best example of Congress using its spending power to enact national policy changes at the state level is the federal effort in 1984 to raise the drinking age from 18 to 21. Responding to the rise in drunk driving incidents across the country, Congress passed a bill which would withhold some federal highway funds from states until they raised the legal age to purchase alcohol – at the time, only 23 states had a minimum drinking age of 21.

Former President Ronald Reagan, a staunch supporter of states’ rights, signed the bill into law, stating that drunk driving was a “grave national problem” that was “bigger than the individual states.” In particular, Reagan noted that the “crazy quilt of states’ drinking laws” contributed to the overall problem.

The same is true for guns. The Giffords Law Center to Prevent Gun Violence offers a map of the patchwork of gun laws across the country, creating a landscape that is effectively the legal equivalent of Swiss cheese – requirements in one state can simply be avoided by crossing to another state.

Only six states, for example, require a minimum age of 21 to purchase long guns like the AR-15. The school shooters in both Parkland, Florida, and in Uvalde were under 21 but were able to legally purchase their weapons in the states where they committed their mass shootings. (Florida has since raised the minimum age to purchase long guns to 21.)

States vary in other respects as well, such as their willingness to supplement federal background checks with reviews of state records, which can prevent some disqualified purchasers, like those with a documented history of domestic abuse or mental illness, from falling through the cracks, or requiring the reporting of stolen firearms, which can reduce straw purchases and gun trafficking.

Congress can follow the drunk driving model and tie states’ receipt of federal educational funds to their enacting gun reforms that would create uniformity in gun laws and reduce gun violence in schools.

The biggest advantage to this approach is that it would avoid a direct confrontation with the Second Amendment. That’s because, in 1987, the Supreme Court ruled on the constitutionality of Congress’ contingent highway funding bill: the state of South Dakota argued that conditioning federal funds on raising the drinking age violated the Twenty First Amendment, which gave states broad power to create restrictions on alcohol. The court disagreed, holding that Congress may, through its spending power, regulate indirectly what it may not necessarily be able to do directly.

Specifically, the court found that drunk driving frustrated the federal interest in the safety of the interstate highway system, and that the spending condition it imposed on the states was reasonably related to that interest. It took some time, but by 1988 all 50 states raised the minimum age to purchase any kind of alcohol to 21.

Similarly, the scourge of gun violence frustrates the stated federal interest in establishing effective school systems, promoting student preparation and achievement for global competitiveness, and ensuring equal access to education. Because federal educational funding to states is only about 8% of the average state educational budget, withholding educational funds would not be unduly “coercive” to states, meeting the constitutional standard articulated by the court in the South Dakota case.

A cynic might argue that states would simply be willing to forgo federal educational funds, as part of a separate effort to dismantle public education. But this is easier in theory than in practice. For one thing, federal funds reach private schools as well as public schools, touching the daily lives of almost all constituents, including Republicans.

More importantly, a substantial portion of federal funding goes for financial aid and research at universities, which are often important economic drivers in their states and influential interests in state legislatures. The majority of school shootings on college campuses in the US have occurred since 2007, making the nexus between educational funds and gun control even tighter.

The icing on the cake when it comes to enacting national gun reform through conditional funding to the states is that Democrats can do it alone. Because bills passed under Congress’ spending power go through the reconciliation process, they are exempt from the filibuster. That means that if all 50 Democrats in the Senate can get on board, a conditional spending bill would be able to pass through both houses and land on Biden’s desk more quickly than the gun reform legislation currently under consideration.

Using the spending power also de-escalates rhetoric about “the feds coming to take people’s guns” – ultimately the decision to enact the reforms would be a choice left up to each individual state.

Although some states, like New Jersey, California and New York, are already moving to enact gun reforms in the wake of the Uvalde tragedy, these are the same states that already have some of the toughest gun restrictions in the country. With Republicans controlling about three in five state legislatures, some additional “nudging” may be necessary to get the most permissive states to act.

Congress should not, of course, abandon federal gun reform efforts, like reimposing a ban on assault weapons, which has been shown to reduce gun violence. But the crisis of the moment requires that it use every lever at its disposal, and conditional funding is one way to circumvent partisan gridlock. Perhaps the best way to stop a bad guy with a gun is with a tight-fisted Congress.