Advocates of gun control and liberal pundits generally disparaged the notion that David Gregory even possibly was subjected to criminal prosecution for violation of the D.C. gun law by possessing a high-capacity ammunition magazine on television.

The non-prosecution was declared the only reasonable conclusion, and those of us who mocked the process (including that the D.C. Attorney General participated in a mock trial with Mrs. Gregory) were, in turn, mocked.

The issue, however, was not David Gregory, but the arbitrary and capricious use of gun laws which are so complicated that many otherwise law-abiding citizens violate those laws without any intent to commit another crime.

D.C. relentlessly prosecuted someone training for the U.S. Marshall’s service who transported guns in compliance with federal law, and would not let go of the prosecution.  The person was exonerated after trial. D.C.’s aggressive prosecution of even technical violations of its gun laws is legendary.

Yet David Gregory was not prosecuted even though NBC News had been warned by the D.C. police that possession of the magazine was illegal and even though the D.C. Attorney general found a clear violation of the law and a feeble attempt to claim confusion as to the law.

When almost everything is a crime, the prosecutor becomes King.

It is, as Prof. Glenn Reynolds writes in a draft of an upcoming law review article, Ham Sandwich Nation: Due Process When Everything is a Crime:

Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process — the decision whether to charge a defendant, and with what — is almost entirely discretionary. Given the plethora of criminal laws and regulations in today’s society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in. This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.

In New York, which just passed a very complicated and at points absurd gun law which inevitably will catch many otherwise law-abiding citizens in its web, we will have many Kings.

[(added) Interview below is with Cam Edwards of NRA News.]

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