President Biden has a constitutionally unsound interest in shredding the Second Amendment. We have been told he seems likely to release some executive actions on the topic tomorrow. He has consistently called for gun-grabbing policies and legislation that would fundamentally incapacitate that vital protection against tyranny. Fortunately for America, and freedom, we have a solid Conservative majority on the Supreme Court who believe the words on that dusty old parchment still matter.
Now that the Biden admin has released the executive orders here are some quick takes
Ghost Guns- This is a narrative over danger action for a problem that doesn’t really exist, it will be tough for it to survive scrutiny. It is a classic “We have to do something, invent a scary name” action.
Pistols vs. short-barreled rifles- The use of a forearm brace to turn a pistol into a more rifle-like weapon is a tough one. In many cases these are not just pistols, but rifle or submachine gun actions and this may be an area where the courts side with Biden. But it more properly belongs as a legislative action, so they may shoot it down on those grounds.
Red Flag laws- These gain popular emotional support as they can be used to take weapons away from people who have shown they are a danger. That means these rules can also be abused to get guns confiscated by angry spouses during divorces other disputes. If this survives it needs to be very narrowly tailored.
The rest of Biden’s aggressive gun-grabbing agenda is outlined below and has yet to be put into action. But he and his allies are hell bent on doing it, so we can expect an attempt in Congress soon.
On the three year anniversary of the Parkland, Florida, school shooting, President Biden released a statement that included this:
“Today, I am calling on Congress to enact commonsense gun law reforms, including requiring background checks on all gun sales, banning assault weapons and high-capacity magazines, and eliminating immunity for gun manufacturers who knowingly put weapons of war on our streets.”
He repeated that call after Ahmad al-Issa used an AR-15 to kill 10 people in Boulder, Colorado on March, 22. Biden said Congress should pass universal background checks but “should also ban assault weapons in the process.”
That “weapons of war” formulation is a favorite of Biden’s and his anti-gun mob. It’s catchy, but 100% unconstitutional when talking about the rights of citizens to keep and bear arms. Unfortunately for the Left, the right to own a weapon of war is precisely what is guaranteed.
The legal precedent for interpreting the Second Amendment is the D.C. v. Heller ruling penned by Justice Antonin Scalia. It very firmly establishes that there is a right for individual citizens to own guns for any legal purpose; and the type of weapons protected. Justice Scalia noted the previous decision U.S. v. Miller 1939 addressed this:
“Miller’s holding that the sorts of weapons protected are those in common use at the time…”
Scalia expanded on that:
“The militia comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.”
This expressly contemplated that the citizens’ militia would be on some sort of equal basis with the standing army, and not simply a collection of individuals with shotguns and hunting implements.
At the time of the drafting of the Second Amendment that weapon would have been a musket. What does that mean in these modern times? I delve deeply into the intent of the Second Amendment in my new book, Winning the Second Civil War: Without Firing a Shot.
The answer is a weapon useful for service as a foot soldier in the militia:
“Today the individual soldier carries some type of AR-15 style rifle with a large capacity, detachable box magazine. It just so happens that the most commonly used weapon by private citizens, also known as the well-regulated militia, is some type of AR-15 style rifle with a large capacity, detachable box magazine. Interesting.”
The argument that usually follows from the Left is that the National Firearms Act of 1934 prohibits citizens from owning many weapons of war including machine guns. They think this should allow prohibiting semi-automatic “assault weapons”, too. The simple answer is that machine guns and other weapons banned in 1934 were never in common use or useful as the weapon of the individual soldier. An AR-15 variant is both.
Justice Scalia did a masterful job in preserving the Second Amendment from most of the attacks the Left will mount against it. Thankfully, D.C. v. Heller is virtually bulletproof. This was vital because it is arguably the most important of all the rights enumerated. It is the only one that gives citizens actual recourse to protect all the others if a government ever becomes un-Constitutionally tyrannical.
You can find a full list of Biden’s bad ideas on guns here. They include the previously mentioned desire to ban the manufacture and sale of “assault weapons”, the registration and taxation of existing ones, a limit to one gun purchase per month, and a cornucopia of other constitutionally-suspect regulations. These issues will come to a head soon as there are bills already being introduced in Congress.
“Texas Democratic Rep. Sheila Jackson Lee has proposed a gun control bill that would create a national firearm registry, set a minimum gun ownership age at 21 and both require licensing and psychological evaluations.”
She also adds an $800 tax for “insurance” and makes this gun registry public knowledge so anyone can find out what guns someone else owns. A more likely first step is a bill reintroduced by Connecticut Senator Chris Murphy who said:
“…the single most popular and effective proposal we can consider is universal background checks,”
This might be the one place they can sneak something in without falling afoul of the Constitution. Federally licensed dealers must already conduct background checks, but private sales don’t require them. It is an open question whether this would be an improper burden on private sales or transfers, including between family members.
The Left is deeply invested in this and they know they need to act while they have control in Congress and the White House. While any law that includes gun banning or grabbing measures would be a grave danger, we need to test the viability of D.C. v. Heller with the supposed Conservative majority in the Supreme Court. An “assault weapons” ban should be an easy 6-3 decision to overturn.
It better be.