As with most prissy, arcane regulations, laws that are designed to regulate the functionality of firearms tend instead to serve as an invitation to caprice. Herewith, a report from William Jacobson on the Extraordinary Tale of NBC’s David Gregory:
The short version is that the D.C. Metropolitan Police Department warned NBC News that it could not possess an actual high-capacity magazine, but NBC News went ahead and did it anyway. The MPD recommended a warrant for Gregory’s arrest, but that request was nixed by the D.C. Attorney General Irvin Nathan because— my paraphrase — Gregory was just too nice a guy and had no other criminal intent.
That attitude stood in stark contrast to the D.C. Attorney General’s vigorous prosecution of other lesser-known people who also were nice people and had no other criminal intent, but violated D.C.’s gun laws.
I do not intend to reiterate here just how extraordinarily difficult it is to execute laws that aim to track pieces of unserialized metal. Nor, for that matter, will I attempt to lay out what any earnest attempt to do so would end up doing to privacy rights in the United States. Rather, I want to focus on the grossly unequal manner in which such rules will inevitably be enforced, and to examine also what this does to the notion of equal protection. From my perspective, the startling thing about the Gregory affair is not so much that the powers-that-be eventually declined to prosecute him for his transgression, but that he was so unfailingly sure that he would be allowed to break the law without consequences. In a vacuum, it is easy to make the case that there was no need to indict NBC for its crime. Indeed it is difficult to imagine a set of circumstances in which doing so could be considered a good use of the city’s time and resources. But the entitled nonchalance with which Gregory presumed that his behavior would be ignored should worry all of us.
Can we honestly presume that your average pro–Second Amendment protester would have been afforded such latitude? Imagine, if you will, that a Gadsden-flag-wrapped NRA member from Dryden, N.Y., takes to a podium to denounce that state’s SAFE Act and, shouting about tyranny and the Founders, holds aloft a 30-round Magpul magazine — in full view of the authorities. Does he get away with it? I’m not so sure that he does. Nor, for that matter, am I convinced that such latitude would be conferred upon someone who, unlike Gregory, was genuinely unaware that the rules had changed. Indeed, in March of last year, the very same government that let Gregory go secured the conviction of a D.C. resident named Mark Witaschek. Why? Well, because Witscheck had been found in possession of an “antique replica muzzleloader bullet” that wasn’t even live. Witaschek, the Washington Times’s Emily Miller records, had been on a hunting trip outside of the district, and he brought back as “souvenirs” an expended shotgun shell and a copper bullet that lacked both the gunpowder and the primer that are necessary to use it. Although Witaschek did not possess a firearm in the city — and although the ammunition could not possibly be fired — authorities in D.C. spent two years prosecuting him.
Witaschek was not alone. A year earlier, the District had prosecuted a visiting soldier from Kentucky after 9mm ammunition was found in his bag. “I have plenty of bags with random ammo in them,” Specialist Adam Meckler complained. “It never crossed my mind to look for them before going into D.C.” Other veterans have been similarly targeted.
Now, none of this is to suggest that the United States is worse off for Gregory’s absolution. Indeed, if I had my way, there would be no legal limits on the size of magazines at all — anywhere, at any time, for any reason. In a free country it is preposterous to see a police department suggesting that a free man should not hold a piece of metal up on television for fear of breaking the law, and it is equally silly that those who are supposed to be in charge of the government are bound by rules that determine how they may best prepare for their defense. But the law is the law, and it has on other occasions been used to prosecute good people for the most benign of infractions. In Gregory we have a man who not only violated the rules, but did so on national television after he had been explicitly told not to. What should we take from this?
Explaining its decision, the attorney general noted that Gregory’s “prosecution would not promote public safety in the District of Columbia nor serve the best interests of the people of the District to whom this office owes its trust.” As opposed to, say, the persecution of Mark Witaschek, which saved the republic from certain downfall?
It is customary for conservatives to be told that their politics are the product of “selfishness,” and that their laissez-faire approach to government is the result of an insufficient empathy with those less fortunate than themselves. “It’s all very well for you to oppose gun control and hate-speech laws and to want to limit the size of the state,” we on the right are often told. “But you live in a safe area, you’re unlikely ever to be on the end of serious animadversion, and you are nicely insulated from any of the vicissitudes of the market.” And yet it seems to me that, so often, the exact opposite is the case. If an overzealous agent of the state decided that my insubordinate politics made me a poor parent and that my kids should be taken into custody, I could immediately take to Twitter and scream bloody murder. I would probably benefit from offers of legal representation; I would be easily able to get in touch with my representative; and, at the very least, I would get the chance to explain on NRO why I had been wronged.
Do we imagine that this would be the same for a poor evangelical in Oklahoma, or for a less connected and less empathetic type who perhaps has a few skeletons in her closet? No, almost certainly not. Indeed, a down-and-out sort would be lucky to see her story make it onto a second-tier blog within the month — and, even then, her case would likely be attended by all sorts of qualifications and nuances, designed to cast doubt as to her suitability.
So it is with the regulation of trivialities. David Gregory and NBC News will always find their way around the law. Soldiers returning from duty, naïve hunters, and the politically disfavored, by contrast, will not. “There ought to be a law,” cry the do-gooders — forgetting all the while that laws are for the little people.
— Charles C. W. Cooke is a staff writer at National Review.