Biden's proposed assault weapons ban has a serious constitutional problem

President Joe Biden is demanding that Congress act immediately to ban assault weapons in America such as the AR-15 that was used in several recent mass shootings. As we grieve the horrific loss of life, it is understandable that emotions are running high. And while emotions often lead to action, those actions are not always lawful. This is Biden’s real dilemma. 

Our current president has a proclivity to assign blame for everything that goes wrong. For years, his favorite boogeyman for gun violence has been the National Rifle Association and weapons manufacturers. During his 2020 presidential campaign he warned, "I’m going to take you on and I’m going to beat you." He all but repeated that vow during his address to the nation on Thursday evening. 

As is often the case with Biden, he has sought to vilify the incorrect target. His obstacle to the gun control measures he envisions is that pesky document called the Constitution and, specifically, the Second Amendment. As a lawyer, he should know this but apparently does not. Someone should clue him in. If he does know, then he’s guilty of recklessness for the sake of demagoguery.

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In the seminal case of District of Columbia v. Heller, the U.S. Supreme Court validated an individual’s right to keep and bear arms under the Second Amendment. Biden is correct when he states that this cherished right is not absolute. But he is wrong when he asserts that Congress has the power to outlaw the guns he wants to ban. Neither the president nor the legislature has the authority to eliminate a constitutional right. That can only be accomplished by amending the Constitution.

In Heller, the high court cautioned that lawmakers do have the ability to impose reasonable limits including the "possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." However, a complete ban on a category of guns would surely exceed the Constitution’s constraints. Even the liberal leaning 9th Circuit Court of Appeals last month struck down a California law involving a semi-automatic weapons ban.

Biden wants to eliminate an entire class of guns that are immensely popular. More than 15 million Americans own an AR-15 (ArmaLite Rifle). Contrary to belief (and Biden’s past incendiary remarks), it is not an automatic weapon like a machine gun that continuously chambers and fires bullets when the trigger is activated. Instead, it fires a single round each time the trigger is pulled.  

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The AR-15 appeals to gun owners because it is lightweight, has interchangeable parts, is easy to use, and is highly effective for both self-defense and hunting.

The president also wants to outlaw high capacity magazines. That would render the vast majority of firearms in the country inoperable since most modern guns are designed to accept only magazines that carry more than 10 rounds. Biden obviously knows this, which is the unstated intent behind his agenda that he is conveniently concealing.

Finally, almost as an afterthought Biden tossed in another demand that semi-automatic handguns be banned. For millions, they are the weapons of choice among smaller firearms. But it was such a brief mention by the president that you may have missed it. The casual nature of its reference underscored his lack of seriousness.

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In his address Biden asserted, "It’s not about taking away people’s guns." Sure it is. No reasonably intelligent person believes that outlawing millions of firearms that people already own does not have the desired effect of disarming a significant portion of the population. Law-abiding citizens should not be penalized for the aberrant acts of a few.

Biden justified his sweeping ban by citing previous legislation a generation ago. In 1994, Congress passed the federal Assault Weapons Ban. It managed to survive a handful of legal challenges but never on the basis of the Second Amendment. The law expired years before the Heller decision established the current constitutional standard. According to the Department of Justice, the earlier ban had no measurable effect on gun violence.

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Despite his best efforts to demonize Republicans for daring to uphold constitutional principles, Biden scarcely addressed the elephant in the room, the Second Amendment, in the wake of the Heller opinion. He likely knows that his demands to eliminate specified guns are unconstitutional. At one point he stated, "If we can’t ban assault weapons…" and then he proceeded to offer other common sense measures.

Those ideas are absolutely worth exploring because they may well pass constitutional scrutiny. Some of them appeal to Republicans who have expressed a willing to craft bipartisan solutions. They include raising the age to purchase semi-automatic rifles from 18 to 21, enacting national red flag laws, greater mental health efforts, stronger background checks, and increased security for schools. On their face these are rational steps that could have the potential to reduce some violence. However, it is a hard reality that not every tragic mass shooting can be prevented. 

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On Thursday evening, Biden described a crisis of urgency and implored Congress to act expeditiously. Then, he jetted off for his palatial pad in Rehoboth Beach for a long weekend.

Perhaps the crisis is not so imperative after all.

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