Editor's note: This post was first published in The Washington Examiner, and is republished here with permission.
Joe Biden's victory in the presidential election virtually guarantees an effort early in the new Congress to outlaw so-called “assault” weapons.
Note that the well-established definition of “assault rifle” includes the ability to switch between semi-automatic and full-automatic fire (think machine guns), but Congress has applied it to semi-automatic weapons that “look” like military weapons.
On March 2, then-candidate Biden announced that Beto O’Rourke was “going to take care of the gun problem with me” and would “lead the effort” in a Biden administration. O’Rourke had famously declared during the 2019 Houston Democratic debate: “[I]f it's a weapon that was designed to kill people on a battlefield ... hell, yes, we're going to take your AR-15, your AK-47.” In the third debate, he clarified: “If someone does not turn in an AR-15 or AK-47, one of these weapons of war ... then that weapon will be taken from them.”
But the Supreme Court has repeatedly affirmed that the core protection of the Second Amendment is the right of law-abiding citizens to possess weapons of war. And that was before three Trump nominees were added to the court. After all, the expressed purpose of the Second Amendment is “the security of a free State.”
In the 1939 case U.S. v. Miller, the Supreme Court overturned a lower court decision holding that National Firearms Act registration of a shotgun with a barrel shorter than 18 inches violated the Second Amendment. The court declared it was “not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”
In other words, it was the ownership of military firearms that was at the core of the Second Amendment’s protection.
In the 2008 D.C. v. Heller case, the Supreme Court declared: “We ... read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” Does the AR-15 even arguably fall into that unprotected category? In recent years, background checks reveal that 20% of all firearms sold, including most rifles, are AR-15s or clones. Under Heller, they are clearly protected by the Second Amendment.
Millions of gun owners are likely to resist an unconstitutional gun confiscation law. Indeed, to date, nearly 1,000 counties across America have declared themselves ”Second Amendment sanctuary zones” — including at least 60% of the counties in 10 states. Law enforcement organizations have also declared that they will not enforce legislation that violates the Second Amendment. In May 2013, the New York Sheriffs Association joined a lawsuit challenging the constitutionality of a state law banning AR-15s and high-capacity magazines.
Any effort to confiscate clearly legal firearms pursuant to an unconstitutional statute will likely lead to civil disobedience and probably bloodshed as patriotic citizens resist tyranny — one of the reasons for the Second Amendment. Have we forgotten Ruby Ridge, Idaho, and Waco, Texas? Such a law will also make tens of millions of law-abiding citizens criminals — at least until the Supreme Court strikes it down.
Rather than usurping the constitutional rights of millions of law-abiding people, Congress might add a mandatory 10-year prison sentence for using a firearm in the commission of a violent felony — and make it 20 years if it is a semi-automatic with a high-capacity magazine.
We could also disincentivize many mass shootings if the media did not publicize the names and life stories of shooters. We know that the Columbine shooters and many copycats were motivated by a desire for infamy.
People who are determined to violate our most sacred laws against murder are not going to be dissuaded by new parking ordinances, “gun-free zone” signs, or laws restricting magazine capacities. In 2014, most U.S. counties had zero murders, while most murders occurred in just 2% of the counties. There are a lot of very complex and often politically sensitive issues at play here. Biden and the new Congress will need to address these realities seriously, along with the underlying mental health problems that contribute to mass shootings and the 63% of annual gun deaths that result from suicides.
But confiscating millions of firearms from law-abiding citizens is not going to help.