Biden's False Gun Claims Are a Lousy Basis for Law
Already abused for political purposes, the power of government shouldn’t be expanded based on lies.
President Joe Biden so frequently and willfully tells lies about firearms that, if he were a podcaster talking about anything other than guns, aging rockers would trip over their walkers in a rush to sever even the most tenuous ties to him. Of course, we live in an age of misinformation and disinformation and probably should expect nothing better from the White House. But Biden proposes to impose ever-tougher rules based on his repetitive malarkey, illustrating the problem of governments wielding their vast regulatory apparatus based on misunderstandings and malice.
"Congress needs to do its part too: pass universal background checks, ban assault weapons and high-capacity magazines, close loopholes, and keep out of the hands of domestic abusers — weapons, repeal the liability shield for gun manufacturers," Biden huffed last week in New York. "Imagine had we had a liability — they're the only industry in America that is exempted from being able to be sued by the public. The only one."
Big, if true! But it's not. As it turns out, gun manufacturers are not immune from lawsuits for flaws in their products. The law that Biden seemingly references and to which others making similar claims point to is the Protection of Lawful Commerce in Arms Act, passed in 2005 after a spate of lawsuits accusing gun makers and dealers of creating a public nuisance. It immunizes the industry against lawsuits when some end user engages in "the criminal or unlawful misuse of a firearm."
"The 2005 law does not prevent gun makers from being held liable for defects in their design," Adam Winkler, professor of law at UCLA, told NPR in 2015 after Hillary Clinton made a nearly identical untrue claim. "Like car makers, gun makers can be sued for selling a defective product. The problem is that gun violence victims often want to hold gun makers liable for the criminal misuse of a properly functioning product."
The law, then, was intended to prevent weaponization of the courts against firearms manufacturers and dealers for products that might be misused somewhere down the line by people unknown. It explicitly exempts from protection anybody "who transfers a firearm knowing that it will be used to commit a crime of violence."
Such protection is also not unique to the firearms industry. For example, as we've been reminded over the past year, the pharmaceutical industry enjoys some protection against liability over vaccines. Congress also implemented limits on liability for the general aviation industry.
"Congress has passed a number of laws that protect a variety of business sectors from lawsuits in certain situations, so the situation is not unique to the gun industry," PolitiFact pointed out in 2015 as it ruled Clinton's accusations against the firearms industry "false."
Biden really has no excuse at this late date to be repeating long-since debunked claims about the firearms industry. Unfortunately, he's also a serial bullshitter about the parameters of Second Amendment protections.
"When the amendment was passed, it didn't say anybody can own a gun and any kind of gun and any kind of weapon," Biden insisted with regard to the Second Amendment during the same speech last week. "You couldn't buy a cannon in — when the — this — this amendment was passed. And so, no reason why you should be able to buy certain assault weapons."
Once again, that's just not true.
"There were no federal laws about the type of gun you could own, and no states limited the kind of gun you could own" when the Bill of Rights was implemented, the Independence Institute's David Kopel told the Washington Post last summer after an earlier iteration of Biden's "cannon" claim.
"In fact, you do not have to look far in the Constitution to see that private individuals could own cannons," the Post's Glenn Kessler noted, pointing to letters of marque and reprisal which commissioned private warships to act on behalf of the United States. "Individuals who were given these waivers and owned warships obviously also obtained cannons for use in battle."
"Biden has already been fact-checked on this claim — and it's been deemed false," Kessler added. "We have no idea where he conjured up this notion about a ban on cannon ownership in the early days of the Republic, but he needs to stop making this claim."
These falsehoods matter because they're repeated by a powerful government official who uses them to argue for changes in law and further restrictions on human activity. Either he's too profoundly thick to learn new information, or else motivated by malice and unconcerned by the truth, but either way he shouldn't be threatening to use the armed power of the state against people based on nonsense.
The regulatory state is already powerful to the point of being incredibly dangerous. Government authority is abused to implement backdoor restrictions on firearms and marijuana that the law itself won't allow. It was used to coerce banks into selling stock to the feds and to force business mergers. Operation Choke Point was a formalized federal scheme to deny financial services to perfectly legal businesses that some politicians just don't like.
"The clandestine Operation Choke Point had more in common with a purge of ideological foes than a regulatory enforcement action," Frank Keating, former governor of Oklahoma and previously an FBI agent and U.S. Attorney, wrote in 2018. "It targeted wide swaths of businesses with little regard for whether legal businesses were swept up and harmed."
And now we have Biden, who wants to expand the reach of government based on repeated misstatements that he's been told time and again are completely untrue. Laws and regulations rooted at their birth in presidential malarkey don't bode well for the future. Proposed in bad faith, we could reasonably expect them to be enforced abusively along the lines of earlier legal and regulatory powers that are used to achieve political ends rather than to address nonexistent problems.
Cancelling people is a bad idea, so even if Biden were a podcaster it would be an error to try to deny him a platform for his misinformation. Instead, perhaps we could, now and for future officeholders, delegate an aide to whisper in the presidential ear from time to time, in the style of heroes' companions during ancient Roman triumphs: "False! We have no idea where you conjured up this notion. But you need to stop making this claim."