Biden's Gun Control Agenda:
Legislatively Feasible, Constitutionally Questionable
Christian Matos | May 2021
President Joe Biden delivering remarks on gun control measures, April 2021
n the heels of passing a massive $1.9 trillion COVID-19 relief package and the announcement of a new infrastructure plan to help the US “Build Back,” President Joe Biden and his administration are setting their sights on another policy objective: gun control legislation.
For several years now, major gun control legislation has been a primary talking point of the Democratic Party, yet the Democrats have been unable to achieve much at the federal level for a multitude of reasons, including a lack of votes in Congress to get such legislation passed. The circumstances are much different this time around under Biden: the Democratic Party holds a six-vote majority in the House of Representatives and has the tie-breaker vote in the form of Vice President Kamala Harris in the Senate. The only obstacle that could hinder the Democratic Party this time is if senators, including Joe Manchin (D-WV), decide to break the party line on a bill when it reaches the Senate. Otherwise, the party should have little trouble getting the bill through both the House and the Senate and on to the President’s desk to be signed into law.
However, just because Biden and the Democrats are able to pass gun control legislation does not mean such legislation will hold under judicial review. With such a polarizing topic as gun control still being the source of substantial constitutional debate, the challenge facing gun control legislation does not lie in drafting a bill that can get passed in both houses; it lies in the potential for court cases considering the constitutionality of such legislation.
President Biden has already outlined what ideal gun control legislation would look like. As of April 7th, the White House released a statement detailing what it plans to achieve with gun control legislation. Specifically, the Biden administration first plans to go after what it refers to as “stabilizing braces” that it claims can “effectively turn a pistol into a short-barreled rifle.” The main impetus behind enacting legislation that targets stabilizing braces comes in the wake of the Boulder, Colorado shooting, where the alleged shooter had one of these braces, which allowed him to effectively turn a pistol into a concealable rifle. Such a piece of legislation would be similar to the bump stock ban that occurred in the wake of the 2017 Mandalay Bay mass shooting in Las Vegas. In that case, legislators stated that the bump stock could turn an otherwise semi-automatic weapon into a modified fully automatic firearm.
President Biden has also proposed the implementation of red flag laws, which would allow family members of law enforcement officers to seek a court order preventing an individual from accessing a firearm if they feel that the individual poses a threat to themselves or those around them. Furthermore, Joe Biden has doubled down on this by ordering the Department of Justice to propose a federally ordained model red flag law for the states as well. President Biden wants a federal red flag law and wishes to find a way to incentivize individual states to adopt such laws. A way to potentially incentivize individual states to pass red flag laws is to go the route that the federal government went with the drinking age: while there is no federal drinking age, there are grants and funds for which states qualify if their drinking age is 21. Utilizing cash incentives has been proven to work with the drinking age so it is plausible that a similar effect could be seen concerning red flag laws.
Biden’s campaign platform included much more extensive plans to curtail gun violence in the United States that will most likely be addressed following the Department of Justice’s rollout of a red flag law model. The president appears to be easing into the waters of gun reform: as aforementioned, he has started by introducing passable legislation concerning attachments to pistols and reforming the rules regarding who can access firearms. After this legislation is passed or gets more support, the Biden administration may begin to roll out massive overhauls of federal gun control legislation.
During the 2020 election race, then-candidate Biden’s policy platform featured plans to reinstitute an assault weapon ban, introduce a buyback program, and propose a ban on high-capacity magazines. Such plans all sound good as talking points, but there will be significant court challenges ahead if President Biden chooses to pursue these overhauls.
Guns and the Courts
Supreme Court jurisprudence concerning the Second Amendment, rare as it has been, has firmly expressed an individual right to bear arms, so President Biden and the Democratic Party need to be even more deliberate and wary regarding how they craft such legislation. If gun-friendly lobbyist groups are unable to influence the legislative process, they will likely fund a court challenge as soon as they see an opportunity that could destroy gun control legislation should it be found unconstitutional.
The Gun-Free School Zones Act of 1990 is an example of why legislators must be deliberate with how any new bill is crafted. 31 years ago, Congress passed this act, which made it a criminal activity to possess a firearm on school grounds; Congress cited the Commerce Clause as the reason it was able to draft such legislation. Just five years later in United States v. Lopez, the Supreme Court deemed that “Gun possession is not an economic activity” and therefore Congress had no authority to pass such legislation, and subsequently the Gun-Free School Zones Act was deemed unconstitutional. Regardless of whether one sees the Gun-Free School Zones Act as massive government overreach or a failed attempt at much-needed gun control, the result remains the same: the federal government has no authority to justify restrictive gun legislation under the Commerce Clause. As seen in even more outrageous cases, such as Wickard v. Filburn, the Commerce Clause has been used by Congress as a vehicle for intrusive, centralized government regulation of industry and individual rights.
The precedent set in Lopez will be difficult to overcome should it be cited in a court challenge. Yet the red flag laws that the Biden administration wishes to propagate would be able to get through such a challenge if these laws address aspects of the firearms industry that Congress has the authority to regulate.
Specifically, should a federal red-flag law be passed concerning the purchase of firearms via interstate commerce, the federal government, specifically Congress, would have the authority to pass such legislation under the Commerce Clause and the Necessary and Proper Clause. Such a precedent as the one set in Lopez also shows the importance of the distinction between federal and state legislation here: the federal government only has the power to regulate interstate commerce, while the power to regulate intrastate commerce is left to the states. This division of power between the federal and state governments appears to be why President Biden is pushing for red flag laws at both the federal and state levels: if both levels of red flag laws are passed there would be regulation at both levels to prevent individuals deemed a threat to themselves or others from obtaining firearms.
Considering Heller and McDonald
There are two other landmark Supreme Court cases that will be referenced in any challenge to new gun control legislation. The first case and quite possibly the most pivotal of the cases is District of Columbia v. Heller, ruled in 2008. Heller concerns a law that the District of Columbia created which made it illegal to possess an unregistered firearm and prohibited the registration of firearms in the District. This functionally made it impossible to own a firearm in the nation’s capital. Ultimately, the law was challenged and went to the Supreme Court where, in a 5-4 decision, the Court held that the Second Amendment established an individual’s right to own firearms. Furthermore, this is the very case that established the Second Amendment as a compound amendment: it first grants people the right to possess firearms as part of a militia, and it also grants people the right to possess firearms privately for reasons such as self-defense.
Two years later, the ruling in Heller was incorporated at the state level with the ruling in the 2010 case McDonald v. Chicago. These two cases have been the backbone of Second Amendment jurisprudence in recent history and will prove to be challenging obstacles to overcome if President Biden chooses to pursue more aggressive legislation, such as a ban on assault weapons. The push to ban assault weapons comes as a result of massive public outcry against the ArmaLite AR-15, which has been the weapon used in many mass shootings in recent years.
President Joe Biden plans to address the AR-15 and other weapons of the same variety by reinstating the 1994 ban which he backed when he was a Senator. This ban had a ten-year sunset clause which was not extended during the Bush administration and resulted in the end of the ban. With both chambers of Congress led by Democrats, the 1994 ban could be reinstated without the sunset clause (the sunset clause was introduced only to gain favor with Republicans) and thus permanently banning assault weapons from being legally purchased.
It should be noted that the precedents of Heller, McDonald, and Lopez were not established at the time of the original ban, a fact which may impede the progress of a new, similar ban. Should it get passed and signed into law, there would almost immediately be a challenge citing the precedent set in Heller. The federal government would likely counter by citing that a ban on assault weapons is not the first ban on weapons the United States has seen: The Firearms Owners' Protection Act of 1986 established a ban on fully automatic weapons that still exists today. Furthermore, the federal government could cite the fact that, in both Heller and McDonald, the Court recognizes that the Second Amendment is not unlimited in scope.
Should such a case reach the Supreme Court, an outcome can be projected based on the outcomes of both of these cases. Several of the justices currently on the bench heard both Heller and McDonald: Roberts, Thomas, Breyer, Stevens, Alito, and Sotomayor were all on the bench for at least one of these cases. With this in mind, it is safe to assume that Justices Thomas, Alito, and Roberts would side with the precedent set in Heller and McDonald, and Justices Breyer, Stevens, and Sotomayor would side with the Democrats’ legislation.
Furthermore, with Amy Coney Barret being a disciple of Scalia, it is safe to predict that she too would side with the precedents outlined in Heller and McDonald. The only two justices that are “unknown” are Gorsuch and Kavanaugh, because they were not on the bench for either case and are not explicitly a “disciple” of any previous Supreme Court justices. That being said, they were both appointed by former President Donald Trump and tend to be “conservative-leaning” justices. With all of this in mind, a projection of a 6-3 decision against the ban does seem plausible.
Despite this prediction that all of the justices will vote in accordance with their “leanings”, there is never certainty regarding such contentious rulings. While it is fair to assume that there are more “conservative” leaning justices on the bench than those who are “liberal”, and while boiling down the Supreme Court to a group of nine partisan individuals is normatively unhealthy, such an analysis may prove capable of producing accurate predictions.
Yet uncertainty nonetheless lies in the fact that the justices do not always follow the “party line”: Justice Roberts has diverged from this line in recent instances including the religious liberty case Tandon v. Newsom. And both Roberts and Gorsuch “split” from the other conservative justices in deciding Bostock v. Clayton County in June of 2020. A purely partisan analysis may be inadequate in predicting a future judicial decision regarding the Second Amendment. One such decision looms on the horizon, specifically involving a New York state law that only allows residents to carry a concealed handgun if they can demonstrate a “special need.”
Yet for now, it is enough to say that Biden and the Democrats, though facing little resistance in Congress, may experience judicially induced turbulence in passing more restrictive gun legislation.