During a 2019 presidential debate, Joe Biden scolded Kamala Harris, then his opponent for the Democratic nomination, for promising to impose gun control by executive fiat instead of through legislation. "Let's be constitutional!" he said. "We've got a Constitution."
Today President Biden and Vice President Harris, frustrated by the legislative branch's failure to approve the new firearm restrictions they favor, announced "six initial actions to address the gun violence public health epidemic." All of these actions, they say, will "save lives" and are "fully within the Administration's authority and the Second Amendment." There are sound reasons to question all three of those claims.
One of Biden's "six initial actions" is the nomination of gun control activist David Chipman to head the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which understandably alarms gun rights supporters but is subject to approval by the Senate. Biden also touts a "$5 billion investment over eight years to support community violence intervention programs," which is part of his American Jobs Plan and likewise requires congressional approval. And he wants the Justice Department to produce an annual report on "firearms trafficking."
The other three "initial actions" are legally dubious, and it seems unlikely that any of them will in fact "save lives."
Pistol Arm Braces
Within 60 days, Biden says, the Justice Department will issue a proposed rule to "make clear" that the addition of a stabilizing brace "effectively turns a pistol into a short-barreled rifle subject to the requirements of the National Firearms Act." That means anyone who owns a pistol with a stabilizing brace, such as the Ruger AR-556 reportedly used by the perpetrator of last month's mass shooting in Boulder, Colorado, would have to register it with the ATF and pay a $200 tax. Gun Owners of America warns that the new policy "is certain to result in the confiscation, destruction or coerced registration of millions of pistol AR-15s and other legally purchased pistols."
Do such pistols actually qualify as short-barreled rifles under the National Firearms Act (NFA)? The ATF has repeatedly said they do not.
The NFA defines a rifle as "a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder." In 2017, the ATF reaffirmed that "stabilizing braces are perfectly legal accessories for large handguns or pistols," although an accessory "employed as a shoulder stock" would make any firearm with a barrel less than 16 inches long "an unregistered NFA firearm."
Biden is telling the ATF (which is part of the Justice Department) to reverse that position, meaning that any stabilizing brace would qualify as a shoulder stock, even if the pistol to which it is attached is not "intended to be fired from the shoulder." That seems inconsistent with the statutory definition, although not quite as inconsistent as the Trump administration's arbitrary determination that rifles equipped with bump stocks qualify as machine guns.
Why does Biden want the ATF to reinterpret the NFA in this way? Because pistol arm braces "can make a firearm more stable and accurate while still being concealable." That improvement in stability and accuracy, he believes, makes such weapons especially appealing to mass shooters.
Never mind that mass shooters actually favor ordinary handguns, or that mass shootings account for less than 1 percent of gun homicides, or that the absence of stabilizing braces, like the absence of the "military-style" features targeted by the proposed federal "assault weapon" ban that Biden supports, cannot reasonably be expected to have any noticeable impact on the frequency or lethality of such crimes. For Biden, the fact that the Boulder shooter used a pistol with a stabilizing brace is enough to make such accessories intolerable.
Within 30 days, Biden says, the Justice Department "will issue a proposed rule to help stop the proliferation of 'ghost guns.'" He is referring to "kits containing nearly all of the components and directions for finishing a firearm within as little as 30 minutes and using these firearms to commit crimes." Mark McDaniel explained how that works—and why it is perfectly legal—in a 2018 Reason tutorial.
Restricting or banning "80 percent" gun kits without new legislation would require some more creative reinterpretation of federal law, changing the definition of firearm to include parts that currently do not qualify. "I want to see these kits treated as firearms," Biden says.
What is the point of this exercise in executive-branch lawmaking? "When these firearms turn up at crime scenes," Biden says, "they often cannot be traced by law enforcement due to the lack of a serial number." He does not say how often that happens, or explain the chain of logic between forcing criminals to use guns with serial numbers and preventing them from killing people in the first place. Presumably the idea is that eliminating the option of homemade guns would raise homicide clearance rates enough to enhance deterrence and "save lives."
Whether or not you buy that, eliminating the option of homemade guns is simply not possible. As J.D. Tuccille notes, "The problem with imposing legal restrictions intended to stop a practice that is designed to evade legal restrictions is that you were outflanked before you even started."
If the Biden administration actually succeeded in unilaterally restricting or banning 80 percent kits, hobbyists might have to take a few more steps or invest in a 3D printer. But there is no practical way to prevent them from making their own guns if they are determined to do so. As Tuccille puts it, "Placing tighter restrictions on 80 percent receivers or other precursor parts for firearms is equivalent to the old Soviet regime trying to shut down the samizdat underground press by regulating copiers; it was an inconvenience, but the publishing network worked around the restrictions."
'Red Flag' Laws
"Within 60 days," Biden says, the Justice Department "will publish model 'red flag' legislation for states." Such laws are plagued by due process deficiencies and often strip people of their Second Amendment rights based on little more than bare allegations that they pose a threat to themselves or others.
Perhaps Biden's model legislation will address that problem by recommending robust safeguards for gun owners who might be wrongly deemed dangerous. But I am not optimistic, since he wants to let "family members" as well as "law enforcement" petition courts for gun confiscation orders. That policy eliminates a layer of protection by letting a long list of possibly biased or aggrieved relatives file petitions directly without having their complaints vetted by police or prosecutors.
Democrats have for years described gun violence as an "epidemic," even when homicides committed with firearms were falling, and news outlets such as The New York Times routinely echo that language. Since major cities saw big spikes in homicides last year, you might say that reality finally has caught up with Democratic rhetoric. But the "epidemic" label is still misleading in a couple of ways.
First, it implies that gun violence is analogous to a deadly microbe that spreads from person to person without conscious human choice, when in fact it results from deliberate decisions to commit criminal acts. That analogy shifts the focus from targeted policies that might change the incentives underlying those acts to broad restrictions that impinge on the rights of many peaceful, law-abiding people.
Second, Biden's "public health" rhetoric applies a quasi-medical, pseudoscientific veneer to policies that should be critically examined on their merits. It implies that contentious measures are beyond serious debate, because public health experts know how to control epidemics, and their wisdom should not be questioned.
In Biden's view, protecting public health requires an arbitrary federal ban on "assault weapons" and magazines that hold more than 10 rounds; expanded background checks for gun buyers, aimed at enforcing absurdly broad rules that deny millions of harmless people the right to armed self-defense; "red flag" laws that have a similar effect on a smaller scale; and repeal of a federal law that protects gun suppliers from potentially ruinous liability for crimes committed with their products. Just as politicians cited the threat posed by COVID-19 to justify sweeping restrictions on millions of Americans, whether or not they were actually infected by the coronavirus, Biden is citing the threat posed by violent crime to justify population-wide interventions that affect millions of Americans, whether or not they pose any sort of danger to public safety.