Last week, airport security screeners detected that Rep. Madison Cawthorn was carrying a loaded 9mm handgun.  Rep. Cawthorn was not the first Member of Congress caught with a gun at the airport.  (For another recent example involving Rep. Ross Spano (R-Fla.) see here.)  Nor was this the first time that Rep. Cawthorn brought a gun through airport security.  Last year, Rep. Cawthorn was caught with another handgun at Asheville Regional Airport.

These high-profile congressional incidents are part of a broader trend of airport screeners detecting more guns.  In 2008, TSA caught 926 firearms at airports nationwide.  Last year, the agency caught nearly 6,000.  TSA generally detects the guns in carry-on bags, including briefcases and purses.  A spokesman for TSA said that these incidents are “almost always inadvertent rather than intentional,” with gun owners forgetting that the weapons were in their bags.  So the problem here is not deliberate misconduct by gun owners.  And it’s not ignorance of federal law and regulations, which require that gun owners transport their weapons only in checked baggage, unloaded and in a locked, hard-sided container.  It’s simply forgetfulness.

Legally, those who attempt to board airports carrying weapons face harsh penalties.  Prosecutors have a smorgasbord of crimes from which to choose.  Federal law makes it a felony punishable by up to 10 years in prison to attempt to board a commercial aircraft while carrying a concealed weapon.  Many state and local laws also prohibit carrying weapons past airport security, often with misdemeanor penalties.  And TSA may impose civil penalties of up to nearly $14,000 per violation.        

Federal law was not always so harsh.  In 1961, aircraft hijackings led Congress to prohibit the carrying of concealed weapons aboard commercial aircraft.  At first, Congress made the penalty a misdemeanor.

In 1984, Congress thoughtfully expanded the federal provisions to include a civil penalty, a misdemeanor provision, and a felony provision.  A person who carried a weapon at an airport could be subject either to a civil penalty or to a federal misdemeanor offense.  The offense only became a felony (punishable by up to five years in prison) when done “willfully and without regard for the safety of human life, or with reckless disregard for the safety of human life.” 

With these options, federal prosecutors could structure charges depending on a person’s culpability.  As the Senate Report to the 1984 law explained (S. Rep. 98-619), a first inadvertent violation could result in a civil fine, while a second inadvertent violation or an intentional attempt to sneak a gun on an aircraft would result in federal misdemeanor penalties.  Felony penalties were reserved for cases that put human life at risk (e.g., “display[ing] the weapon in the course of an altercation with a fellow passenger or with a flight attendant”).  (For this history, see Stephen Halbrook’s article Firearms, the Fourth Amendment, and Air Carrier Security.)

The Antiterrorism and Effective Death Penalty Act of 1996 ruined that thoughtful approach.  Congress made the simple carrying of a gun punishable by up to 10 years in prison.  The maximum penalty for aggravated cases was raised to 15 years.  So under federal law, gun owners who merely forget to remove their guns from their bags face up to ten in federal prison.

These penalties are too harsh for a simple act of negligence, and the result has been predictable.  Federal prosecutors generally decline to bring charges under federal law.  In fact, the Justice Manual, which sets forth the Department of Justice’s policies, instructs federal prosecutors to generally reserve federal concealed weapon prosecutions only for aggravated cases.  Most cases are now handled by TSA with federal civil penalties and, when available, with state and local misdemeanor prosecutions.  (Rep. Cawthorn, for example, was cited under local law for possessing a weapon on airport property.)   So with Congress acting too harshly, non-statutory federal policies have recreated the tiered approach that Congress set forth in 1984.

But this de facto recreation of the 1984 law has its disadvantages, too.  Federal prosecutors now largely depend on state and local prosecutors to bring misdemeanor prosecutions when warranted.  But many states do not have their own statutes regulating firearms on airport property.  And even when they have such laws, not all prosecutors bring charges. 

State and local prosecution policies can be uneven.  The first time Rep. Cawthorn was caught with a gun at the Asheville airport, the gun was “secured at the airport and [the Congressman] retrieved it after his flight.”  Rep. Spano was allowed to “secure” his gun (which, in this case, might have meant that he took his gun back to a vehicle).  Yet, Asheville, by ordinance, prohibits weapons on airport property, and Florida state law makes it a misdemeanor for a person with a permit to carry a weapon into the airport.  Regular citizens who forget their guns are frequently charged and their guns are confiscated, not secured.

The increase in detected firearms at the airport has caught the attention of the House Homeland Security Subcommittee on Transportation and Maritime Security.  The subcommittee is researching ways to decrease the number of firearms detected at airports. 

To date, TSA’s response to the problem has been remarkably short-sighted.  Federal Security Director Robin “Chuck” Burke recently asked airlines and other members of the public to “please re-stress the fact that you cannot carry a weapon into an airport processor.”  Such admonitions have become routine when TSA announces that it has detected a gun at an airport checkpoint.  But these admonitions are useless.  Although TSA knows that virtually all detected firearms involve lawful gun owners who forgot about their weapons, the agency’s policy response has treated the problem as if gun owners were ignorant of the rules for transporting guns on airplanes.  Unsurprisingly, this cognitive dissonance has produced no tangible policy results.

TSA is now looking to ratchet up the penalties for those who inadvertently bring guns on planes.  TSA is revoking violators’ PreCheck and is pressuring local law enforcement to revoke their permits to carry guns.  But I suspect that these efforts will also fail.

If the federal government wants to reduce the quantity of firearms brought to airports, TSA needs to change its approach to the problem.  Because these cases involve inadvertent negligence, rather than deliberate misconduct, tangible results will only occur when gun owners change behavior.  Examples include gun owners:  unpacking and repacking their briefcases and purses before getting on a flight; visually checking that their guns are, in fact, at a safe place at home before leaving for the airport; and inspecting their bags one last time before going through security. 

TSA could facilitate this by undertaking an aggressive campaign to encourage gun owners to check their bags before going through security.  TSA could post large, conspicuous signs addressed specifically to this issue.  (TSA should also substantially reduce its overall signage at the airport; TSA posts too many signs with too much information, and as a result, people ignore them.)  At the security checkpoint, signs should not say, as they currently do, that “Firearms must be unloaded and declared to your airline.”  Gun owners know that.  These signs should display specific warnings to check briefcases, purses, and carry-on bags for weapons, particularly for those who customarily carry such weapons.  TSA and airport employees could also verbally instruct passengers waiting in line for screening that if they carry a gun, they should check their bags for weapons before going through security.  Such specific warnings would be hard to ignore and would encourage those who carry guns to take a second look at their bags before getting to the checkpoint. 

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) could also help.  When federally licensed dealers transfer firearms, ATF has had the dealers provide information about the prohibition on bringing guns to the airport.  That information should also include “best practice” suggestions for avoiding the mistake (e.g., encouraging gun owners to unpack and repack their bags).

On the legal side, Congress should consider restoring the 1984 federal misdemeanor penalty.  Harsher penalties do not increase deterrence when the penalties are so harsh that they do not get enforced.  A credible misdemeanor penalty may have some deterrent value.  Again, the problem here is one of inadvertence, so the deterrent effect of a misdemeanor penalty will likely be limited.  But it may be helpful in some cases, particularly for repeat offenders like Rep. Cawthorn.