Neither Harris Nor Her Party Perceives Any Constitutional Constraints on Gun Control

The 2024 Democratic platform devotes five paragraphs to firearm restrictions but does not even allude to the Second Amendment.

While this year's Republican Party platform makes only a passing reference to Second Amendment rights, the platform approved at the Democratic National Convention this week does not mention them at all. But it does include eight references to "gun safety" and a section that brags about the Biden administration's accomplishments in this area while laying out an agenda of additional firearm restrictions.

That treatment of this subject is similar to the approach that Democrats took in 2016, when their platform mentioned "the rights of responsible gun owners" but did not elucidate the basis of those rights, and in 2020, when the platform did not go even that far. The 2016 platform devoted a paragraph to gun control, which became two paragraphs in 2020 and has now expanded to five. Neither of the two most recent platforms so much as alludes to respect for gun rights.

By contrast, Democrats in 2000 promised to "respect the rights of hunters, sportsmen, and legitimate gun owners." Four years later, after the gun issue, including Al Gore's support for banning "assault weapons," was widely blamed for contributing to George W. Bush's election, Democrats promised to "protect Americans' Second Amendment right to own firearms." The 2008 and 2012 platforms included similar language, in both cases explicitly invoking the Second Amendment, which disappeared in the 2016 platform and now does not even seem like a dim memory for Democrats.

Whatever you make of former President Donald Trump's evolution on gun rights, which seems to reflect political expendience rather than true conviction, he at least understands the importance of paying lip service to the Second Amendment. The current Democratic Party, by contrast, is intent on pushing gun control without acknowledging any constitutional limits on it.

"When I'm back in the Oval Office, no one will lay a finger on your firearms," Trump promised at the National Rifle Association's Great American Outdoor Show Presidential Forum in Harrisburg, Pennsylvania, on February 9. "It's not going to happen….Even as they turn America into a crime-ridden, gang-infested, terror-filled dumping ground, Joe Biden and his thugs will do everything in their power to confiscate your guns and annihilate your God-given right to self-defense. During my four years, nothing happened. And there was great pressure on me having to do with guns. We did nothing. We didn't yield."

In their platform, the Democrats quote those last four sentences, which they consider damning: "While he 'did nothing,' gun violence spiked: Trump oversaw the largest single-year increase in murders in history, including a 35 percent increase in gun murders. He refused to limit the use of high-capacity magazines after a Las Vegas shooter used a dozen 100-round magazines to kill 58 people. And, when confronted with horrific gun violence, he told families to 'get over it.'"

Both of these glosses require correction. Although Trump claims he "did nothing" on gun control, that is not true. After the October 2017 Las Vegas massacre, he demanded an administrative ban on bump stocks, which the Supreme Court overturned last June, ruling that it exceeded gun regulators' statutory authority. During a February 2018 meeting with legislators, Trump spoke favorably of requiring background checks for all gun transfers, raising the minimum age for buying long guns, preemptively confiscating guns from people who might be dangerous, and even banning so-called assault weapons, to the visible delight of Sen. Dianne Feinstein (D–Calif.).

On other occasions, Trump voiced support for banning gun possession by people on "no-fly" lists and for "red flag" laws, which authorize court orders that suspend the Second Amendment rights of people deemed a danger to themselves or others. He went so far as to say that the police should "take the gun first" and "go through due process second" when they think someone is dangerous. Still, it is true that Trump's comments did not translate into any actual policy changes, aside from the bump stock ban.

Trump's reaction to the Las Vegas mass shooting shows that the Democrats' portrayal of him as unfazed by such horrifying crimes is blatantly inaccurate. Their use of the "get over it" quote is highly misleading. Here is what Trump actually said after a school shooting in Iowa last January: "It's just horrible, so surprising to see it here. But [we] have to get over it; we have to move forward."

The Democrats' implication that loose gun control was responsible for the 2020 spike in homicides likewise is hard to take seriously. There was no change in gun policy that could account for that surge. Nor was there any change in gun policy that could account for the recent declines in homicide—a development that Democrats are quick to emphasize when Trump tries to blame the Biden administration for a supposedly "skyrocketing" murder rate. And their implicit thesis that more guns mean more violence is contradicted by crime trends since the early 1990s: From 1993 to 2013, when the homicide rate fell by more than half, the estimated number of guns owned by Americans rose by about the same percentage.

In contrast with Trump's record of doing (approximately) "nothing" to restrict guns, the Democrats brag about President Joe Biden's support for the Bipartisan Safer Communities Act (BSCA) of 2022, "the first significant federal gun safety law in nearly 30 years." The BSCA, they say, "includes the first-ever federal gun trafficking and straw purchasing law." The platform does not mention that the BSCA defines "gun trafficking" broadly enough to encompass "prohibited persons" who obtain firearms, creating a new charge, punishable by up to 15 years in prison, for people like Biden's own son, who was convicted in June of buying a revolver when he was a crack cocaine user.

Those prohibited persons include millions of Americans with no history of violence, whom Congress has arbitrarily deemed felons if they dare to exercise their Second Amendment rights. The categories include cannabis consumers and other illegal drug users, anyone who has ever been subjected to involuntary psychiatric treatment because he was deemed suicidal, and anyone who has ever been convicted of a crime punishable by more than a year of incarceration, whether or not it involved violence of any sort.

Before the law that Democrats proudly cite, those people already faced up to three felony charges for buying firearms; the BSCA's "gun trafficking" provision added yet another. The same law also increased the maximum penalty for illegal gun possession from 10 years to 15 years. Biden evidently thought that people like his son were getting off too lightly.

In recent years, these sweeping bans on gun possession have provoked many constitutional challenges, some of which have been successful. But since Democrats do not even acknowledge the existence of the Second Amendment, they are happy to double down on this unjust and irrational policy. And they promise more of the same, saying they will "establish universal background checks" aimed at enforcing these restrictions.

The Democratic agenda also includes a new federal "assault weapon" ban, another illogical, constitutionally dubious policy that even Biden has admitted has no effect on the lethality of guns available to would-be murderers. They want to "end the gun
industry's immunity from liability" for legally selling guns that are later used to commit crimes, allowing lawsuits that would undermine the Second Amendment by attacking businesses that enable Americans to exercise the rights it guarantees. Democrats also promise "a national red flag law," which would compound the due process and Second Amendment violations we have already seen in states that have embraced this policy.

Although Vice President Kamala Harris' current campaign website is short on specific policy positions, the platform confirms what we already knew: She does not see the Constitution as an obstacle to her gun control agenda. Back in 2019, when Harris was vying with Biden for the 2020 Democratic presidential nomination, she promised to impose new gun policies—including "universal background checks, an assault weapons ban, and the repeal of the NRA's corporate gun manufacturer and dealer immunity bill"—by executive fiat if Congress failed to approve such legislation during her first 100 days in office.

That was too much even for Biden. "There's no constitutional authority to issue that executive order when they say 'I'm going to eliminate assault weapons,'" he said. "You can't do it by executive order any more than Trump can do things when he says he can do it by executive order." Asked about that comment during a Democratic presidential debate, Harris laughed and blithely replied: "Well, I mean, I would just say, hey, Joe, instead of saying 'no, we can't,' let's say 'yes, we can.'"

Biden objected. "Let's be constitutional," he said. "We've got a Constitution." He also suggested that Harris should "check with constitutional scholars" about whether her plan was consistent with the separation of powers.

While Biden aspired to "be constitutional," in other words, Harris replied, in essence: "Constitution, schmonstitution. Why should that get in the way of my agenda?"

As president, Biden seemed to overcome his reservations about unilateral gun control. The Democratic platform, for instance, praises him for trying to ban homemade guns without congressional authorization, another policy that has been challenged in court.

In any case, Biden's 2019 disagreement with Harris hinged on the question of whether the president has the constitutional authority to unilaterally ban "assault weapons." The Second Amendment did not enter into it, even as an afterthought. That has been Biden's governing assumption about gun control, and we can expect the same (or worse) from Harris.