(CNSNews.com) - A Bush administration program that calls for federal agents to prosecute gun crimes runs afoul of the U.S. Constitution, some legal scholars believe.
"In actuality and despite what the federal courts have felt constrained to do, the federal government has no more legitimate constitutional authority over gun crime that happens in one state than it does over jaywalking or drunk driving," said Gene Healy, Cato Institute legal scholar.
At issue is a Bush administration policy called Project Safe Neighborhoods, unveiled in early 2001, that establishes a network of law enforcement and community initiatives targeted at gun violence.
The law provides federal tax dollars for hiring 113 federal and 600 state prosecutors and initiating a range of "community outreach efforts." It also directs tax dollars to police departments like those in Denver, Lakewood and Colorado Springs, Colo. for example, that recently received $50,000 apiece for local firearm law enforcement.
And law enforcement officials credit the program for bringing down gun crime rates.
The National Rifle Association has been a strong supporter of the initiative, out of concern that existing federal gun crime laws were not being enforced by the Clinton administration Justice Department.
"The federal government wasn't enforcing the current gun laws that were already on the books," said Kelly Whitley, NRA spokesperson. "At the same time, people in Congress and in the state legislatures were proposing new gun control laws that would restrict law abiding citizens.
"We felt that we should try to enforce the [laws] we already have on the books first before implementing new restrictions," said Whitley. "That was our reasoning behind getting involved with Project Exile in Richmond, (Va.)," the prototype for the federal initiative.
The Richmond initiative worked well, said Whitley. It "worked and did a good job and enforced gun laws against criminals and helped reduce the violent crime rate in Richmond by almost 70 percent in just two years.
"It's a program one can get behind from an aspect of getting criminals off the street," said Whitley. "Our main concern is the Second Amendment and making sure that law abiding citizens have the ability and right to bear arms."
Still, Healy believes the NRA and the Bush administration should have heeded their own advice on federalism.
According to Healy, the president has spoken to governors about respect for federalism and enumerated powers while NRA chief Wayne LaPierre has spoken of the importance of every part of the Constitution, so "these guys know, or should know, that the Constitution doesn't give the federal government authority over ordinary, garden variety gun crimes, no matter what the federal courts have allowed the federal government to get away with."
But an escalating federal presence in criminal law will also produce a host of unwanted consequences, federalists warn.
Healy believes it will result in "prosecutorial mischief affecting the racial composition of juries" and, in creating single-issue prosecutors, lead to a "mindless zero tolerance policy for technical infractions of gun laws."
"You're eroding the states' power and some of the diversity that's one of the great things about this country," adds Michael Rushford from the Criminal Justice Legal Foundation.
"States get to try different things and see what works. When you federalize everything, and it's a one size fits all thing, you're asking Wyoming and New York to be operating under the same system, and that may not be a good idea," Rushford said.
The Constitution does not give the federal government unrestricted authority to interfere in intrastate criminal matters, said Healy, who points to a U.S. Supreme Court ruling in the case, U.S. v. Lopez, as proof that the nation's highest court agrees.
In that 1995 case, the Supreme Court struck down a provision of the Gun-Free School Zones Act on the grounds that the commerce clause did not give Congress such power.
But the lower courts are not following the Lopez decision, said Healy, probably because if courts were to start "recogniz[ing] that the commerce clause [grants] very limited power to ... create a nationwide free trade zone" then "it has dramatic implications for 99 percent of what the federal government does.
"So it may just be for political reasons that the courts have not taken this as far as the Constitution would warrant," said Healy.
Another problem, Healy believes, is that state law enforcers are not defending their turf.
"A lot of local prosecutors are getting on board because Project Safe Neighborhood brings federal tax dollars and allows them to hire new prosecutors," said Healy. "I haven't read any articles of [them] saying I'm not taking this grant money because I don't want the strings that are attached to it and we want to handle it ourselves."
See Related Stories:
Bush Vows To Fight Gun Crimes In America's Neighborhoods
Norton Presses Law Enforcement at NRA Meeting
E-mail a news tip to Christine Hall.
Send a Letter to the Editor about this article.