Carrying a gun way worse than beating your wife

By Glenn Harlan Reynolds

Sunday, August 10, 2014

When Ray Rice beat his wife unconscious in an elevator, New Jersey Superior Court Judge Michael Donio and New Jersey District Attorney Jim McClain agreed to put him in a diversion program for 1st-time offenders to keep him out of jail. But when Pennsylvania single mom Shaneen Allen was pulled over for a traffic violation and volunteered to a New Jersey police officer that she was carrying a legally-owned handgun with a Pennsylvania permit, the response of Donis and McClain was to deny her the same opportunity as Rice.

Allen lives in Philadelphia, right across the river from New Jersey. She has a Pennsylvania permit to carry a handgun. She thought it was recognized in New Jersey, just as it is recognized in over 30 other states. She was wrong. When she told the officer that she had the gun, she was arrested.

Now she faces a felony conviction and a mandatory 42 months in prison. Both Donio and McClain have been unwilling to dismiss the charges, or send Allen to a pretrial diversion program. They seem to want to make an example of her.

The problem is, she's being punished for something the Constitution says -- and the Supreme Court has agreed -- is a constitutional right. And the super-stiff penalties and abusive prosecution she's experiencing are pretty clearly intended to chill people from exercising that right. The Washington Post's Radley Balko quotes anti-gun activist Bryan Miller gloating over this result: "Fortunately, the notoriety of this case will make it less likely Pennsylvanians will carry concealed and loaded handguns in New Jersey, thereby making them and the Garden State safer from gun violence,"

Well, no. Shaneen Allen wasn't committing gun violence, and civilians with gun permits are a very law-abiding bunch, who have passed a background check and undergone training; no sensible state would want to discourage them from visiting.

But Miller is right that the New Jersey law in question is clearly intended to have a "chilling effect." In First Amendment law, statutes that are intended to chill people's free expression are often struck down by courts. Now that the Supreme Court, along with lower courts, has made clear that the Second Amendment protects an individual right to arms, it seems as if laws designed to treat gun-ownership and gun-carrying as, well, deviant and suitable for discouragement, will get the same treatment as laws that chill speech (I argue for that in a recent article in the Southern California Law Review.)

Perhaps, as the national outcry grows, the New Jersey justice system will do right by Allen. But the larger problem remains: While the courts have recognized that gun ownership is a normal, protected American activity, gun owners face a patchwork of laws that in many states impose Draconian penalties on people if, like Allen, they make an honest, harmless mistake. Allen is just the latest to be victimized by New Jersey officials. Travelers Brian Aitken and Greg Revell, suffered the same fate as Allen.

Under the Constitution, Congress has the power to protect civil rights via legislation, and this seems like a good subject for action. I would suggest a law providing that when people who may legally own guns under federal law are charged with possessing or carrying them in violation of state law, the maximum penalty should be a fine of no more than $500. This would allow states a reasonable degree of regulation, without subjecting individuals to life-ruining consequences just because some politico wants to make a point.

How about it, Congress? Isn't one Shaneen Allen case enough?