Politics & Policy

Joe Biden’s Gun-Control Plan Is a Constitutional Disaster

Joe Biden speaks at the Iowa Federation of Labor Convention in Altoona, Iowa, August 21, 2019. (Gage Skidmore)
The heart of the proposal is a direct attack on the gun industry and the self-defense rights of law-abiding Americans.

This morning, Democratic presidential front-runner Joe Biden unveiled his “Plan to End Our Gun Violence Epidemic,” and it’s a mess. It contains provisions that would bankrupt gun manufacturers for the crime of selling fully functional, legal firearms. It would ban the sale of the most popular rifles in America and the standard-capacity magazines made for America’s most commonly used handguns. Oh, and to incentivize a voluntary buyback of existing “assault weapons,” it would grant the owners of such weapons a choice: sell your rifle to the government or join a firearms registry.

Put simply, Biden’s plan would leave law-abiding citizens outgunned in their own homes by predatory criminals, and place virtually every gun-maker at risk of financial ruin. This is what Democratic “moderation” looks like?

Biden begins his plan by pledging to repeal the Protection of Lawful Commerce in Arms Act, a 2005 law that was designed to shield gun-makers from liability for “harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.” This is a solid basic principle. If a terrorist uses an SUV in a ramming attack or puts a bomb in a van, it’s not the automaker’s fault. Why should it be the gun-maker’s fault if if an evil man uses a lawful product unlawfully?

It shouldn’t be. Yet there are all too many Americans (and American judges, especially in state courts) who view the manufacture and sale of guns as morally suspect, and of so-called assault weapons as inherently illegitimate. The Protection of Lawful Commerce in Arms Act stands as a firewall against activist litigation designed to put gun companies out of business. Biden would destroy that firewall.

What of his proposed assault-weapons ban? Let’s be clear — what the Biden plan calls “weapons of war” are not the weapons that our soldiers carry into combat. Instead, AR-style rifles are among the most popular civilian firearms in the United States. They are extraordinarily useful for self-defense, and they’re rarely used to commit crimes. (Indeed, rifles more broadly are used to kill fewer people than blunt objects or hands and feet.) Yes, they have been used in several high-profile mass killings, but there’s no meaningful evidence indicating that banning them would decrease mass shootings. In fact, they’ve been used in mass shootings in states that already ban them.

Taken together, Biden’s bans on the sales of assault weapons and the magazines that come standard with millions of popular rifles and handguns would create the perverse result of placing law-abiding Americans at a distinct disadvantage in defending themselves from criminals. With hundreds of millions of magazines already in circulation, the foreseeable threat comes from a criminal armed with just such a magazine. That’s one reason why police officers carry equivalent weapons. It’s one reason why bans on standard-capacity magazines tend to contain exceptions for law-enforcement officers. But if police can protect themselves from common domestic threats, why can’t my family?

Biden wants to give existing assault-weapon owners a choice: Sell your weapon to the government or register it with the government. But we know registration is a failed policy, one that’s routinely met with massive public indifference. It’s estimated that as many as 1 million New Yorkers have defied the Empire State’s assault-weapon-registration law, and as many as 85 percent of Connecticut assault-weapon owners have flouted the Nutmeg State’s registration requirement. A California registration requirement has had compliance rates as low as 3.6 percent. If states are the laboratories of democracy, then registration is a lab experiment that’s failed.

Biden’s proposal also contains now-standard calls for universal background checks and his own hobby-horse, so-called smart guns that present enormous technological and practical challenges, including challenges that could hamper their use in self-defense, when innocent lives are on the line. And while I support properly drafted “red flag” laws, I have little confidence in the due-process protections that a Biden administration would endorse.

There are good elements to Biden’s proposal. Stricter enforcement of laws prohibiting straw purchases would be a welcome way of cracking down on a method we know criminals use to obtain guns. Forwarding failed background-check requests to law enforcement could deter individuals who know they’re prohibited purchasers from attempting to slip through cracks in the system. But the heart of the plan is a direct attack on the gun industry and on the inherent right to self-defense of America’s law-abiding citizens.

One final note: While it’s important to highlight the injustice of Biden’s proposals, it’s also worth mentioning that draconian Democratic gun-control proposals are partly the fault of a Supreme Court that has been woefully delinquent in taking and deciding Second Amendment cases. We cannot expect the Court to rapidly develop a body of case law as rich and detailed as its First Amendment jurisprudence, but we have a reasonable right to expect it to definitively decide whether the government can, in fact, ban the nation’s most popular firearms and most widely used magazines.

Until that question is answered, though, our body politic will continue to confront a series of escalating Democratic gun-control proposals. Those proposals will have virtually no chance of passing at the federal level. But they’ll still demonstrate the vast, growing cultural and political divide over American gun rights.

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