The House of Representatives passed a sweeping gun reform package last week which included a ban on ‘high-capacity magazines’ through a government buyback program. Even if this legislation were to somehow make it past a hostile senate, it would still face an insurmountable roadblock: the Constitution.
The gun reform package comes days after Biden addressed the nation in the wake of the unspeakable events that occurred in Uvalde and Tulsa. While some might see the “Protect Our Kids Act” as a partisan victory, the bill barely accomplishes Biden’s aim. In his address, the president proposed an assault weapons ban, a testament to his radical efforts to usurp prestigious legal precedent.
The 2008 landmark decision of District of Columbia v. Heller states that a government’s attempt to restrict an individual’s right to keep and bear arms is unconstitutional under the Second Amendment, making Biden’s proposed ban, as well as Congress’s attempt to ban 15-round mags, constitutionally doomed from the start.
The late Justice Antonin Scalia, an indomitable champion of originalism, stated in his Heller opinion that there is a “problem of handgun violence in this country” and that “the Constitution leaves the District of Columbia a variety of tools for combating that problem.” Those tools include lawmakers’ capacity to place limits on “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.” Scalia insists that the Second Amendment is not solely limited to allowing a well-regulated militia but protects the individual’s right to keep and bear arms, no matter what kind of firearm is in question.
Nowhere does the Second Amendment allow any specific exception for military style weapons. It would be odd if it did, given the whole point of the Second Amendment is to guarantee Americans the ability to protect themselves from the government. (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”)
The notion that firearm ownership is legal is also backed by Caetano v. Massachusetts where Justice Samuel Alito and Justice Clarence Thomas state that possession of a lethal gun is legal. “It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States,” their opinion reads.
Biden’s proposal to completely ban a specific category of guns would stretch the checks of the Constitution. So would the gun reform package. Their odds don’t look great.
Even the historically liberal 9th Circuit Court of Appeals struck down California’s semi-automatic firearm ban.
Progressives’ have called for new legislation in response to mass shootings, despite not enacting any significant law 14 years since the Heller decision. What’s more, Biden claimed Thursday that a previous ban on “assault weapons” from 1994-2004 reduced mass shootings, which was never the case. A 2004 study from the University of Pennsylvania Center of Criminology funded by the Department of Justice found the assault weapons ban resulted in “no discernible reduction in the lethality and injuriousness of gun violence.” As of 2020, evidence that assault weapon bans have any effect on mass shootings remains inconclusive.
Biden’s proposed ban is a non-starter, and the new gun reform package is really no better. Rather than unnecessarily antagonizing law-abiding gun owners, policymakers and concerned citizens alike should be garnering bipartisan support for background checks at the federal level and red-flag laws at the state level.
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