Columns, Constitutional Law, Politics, Supreme Court

Biden’s Inner Trudeau: On Guns, the President seems to be Operating Under the Wrong Constitution

Below is my column in The Hill on the calls for gun bans after the massacre in Uvalde, Texas. The massacre has already been used as the basis for calls to end the filibuster, pack the court, limits on gun ownership, and outright bans. One member called for all of the above. The rhetoric is again outstripping the reality of constitutional and practical limits for gun control. Last night, President Joe Biden formally called for banning “assault weapons” while repeating the dubious claim that an earlier ban sharply reduced mass shootings.

Here is the column:

In our increasingly hateful and divisive politics, there are times when our nation seems incapable of coming together for a common purpose. Tragedies — moments of shared national grieving and mutual support — once were the exception. Yet one of the most chilling aspects of the aftermath of the school massacre in Uvalde, Texas, was how the moment of unity was quickly lost to political posturing.

Politicians have long admitted that a crisis is an opportunity not to be missed — the greater the tragedy, the greater the opportunity. After the mass shooting at a Buffalo supermarket, New York’s Gov. Kathy Hochul (D) called for censorship to “silence the voices of hatred and racism.” After the Uvalde massacre, some Democrats renewed calls for everything from court packing to ending the Senate filibuster.

The most immediate response, however, was a call for gun bans. Vice President Kamala Harris got out front of the White House by demanding a ban on AR-15s, the most popular weapon in America. Then President Joe Biden created a stir by suggesting he might seek to ban 9mm weapons.

Such calls are not limited to the United States. Canadian Prime Minister Justin Trudeau announced that his government is introducing legislation to “implement a national freeze on handgun ownership.” He said Canadians would no longer be able “to buy, sell, transfer or import handguns anywhere in Canada,” adding that “there is no reason anyone in Canada should need guns in their everyday lives.”

The difference between the push in the two countries is the existence of the Second Amendment in the United States — a constitutionally mandated “reason” why Americans are allowed to have guns; they don’t have to prove it to the government.

While the White House subsequently tried to walk back his comments, Biden saying there’s “no rational basis” to own 9mms and AR-15s sounds like he’s channeling his inner Canadian.

There is now a strong majority for gun control reforms. However, politicians are once again ignoring what is constitutionally possible by focusing on what is politically popular with their voting base.

In the past, politicians in cities like New York, Chicago and Washington, D.C., have proven to be the gun lobby’s greatest asset. They have pushed ill-considered legislation and litigation that only served to create precedent against gun control. The same pattern seems to be playing out as leaders like Biden and Harris voice sweeping, unsupportable statements about guns and constitutional protections. For example, despite being repeatedly corrected, President Biden continues to repeat the same false statements about bans on weapons when the Second Amendment was ratified.

Those false statements can be dismissed as just another “Corn Pop” story, but they refer to the constitutional foundation for gun control. This concern is magnified by other recent claims that would quickly collapse in court. For example, in support of the ban on AR-15s, Harris declared: “Do you know what an assault weapon is? It was designed for a specific purpose, to kill a lot of human beings quickly. An assault weapon is a weapon of war, with no place, no place in a civil society.”

Courts do not interpret the Constitution by soundbites but, rather, by sound historical and textual arguments. Courts likely would press the Biden administration on why it is seeking to ban this model when other higher-caliber weapons are sold. AR-15s can handle a variety of calibers. However, they are no more powerful than other semi-automatic rifles of the same caliber and actually have a lower caliber than some commonly sold weapons which use .30-06, .308 and .300 ammunition; many of these guns fire at the same — or near the same rate — as the AR-15. None of these weapons are classified as actual military “assault weapons,” and most civilians cannot own an automatic weapon.

President Biden showed the same disconnect as Harris between the factual and the rhetorical basis for some gun-control measures. He condemned “high-caliber weapons” like 9mm handguns and said “a .22-caliber bullet will lodge in the lung, and we can probably get it out — may be able to get it and save the life. A 9mm bullet blows the lung out of the body.”

While gun experts mocked the notion that 9mm rounds blow organs out of bodies, the president’s singling out of these handguns led many to cry foul about using the Uvalde massacre to impose a Canadian-like ban or moratorium. The 9mm round is the most popular handgun caliber in the U.S., with more than half of all handguns produced in 2019 using that round, according to Shooting Industry magazine. If Biden pushed a ban, he would target more than 40 percent of all pistols produced in the U.S.

In addition to repeating (for the second time in two days) a false claim that certain weapons were banned at the ratification of the Second Amendment, Biden made the claim that an assault weapons ban in the 1990s “significantly cut down mass murders.”

There is small support for saying that earlier ban on assault weapons had any appreciable impact on mass murders; there is no support for saying it caused a reduction in gun violence overall. Thankfully, mass shootings are statistically rare. Even studies that noted a drop in mass shootings during this earlier period noted that such a cause-and-effect claim is “inconclusive.”

Moreover, the earlier ban was imposed in 1994 — before the Supreme Court ruled in District of Columbia v. Heller that the right to bear arms is an individual right. Any such ban today would face a far greater court challenge and would require a far more compelling factual foundation to pass constitutional muster.

While making these dubious claims, President Biden stressed that “I can’t dictate this stuff … I can’t outlaw a weapon.” He added: “I think things have gotten so bad that everybody is getting more rational about it. At least, that’s my hope and prayer.”

There is room for rational reforms, ranging from better funding of mental illness treatment to “red flag” laws. However, a “hope and prayer” is unlikely to succeed if the president continues to inject hype and politics into our national debate over gun control.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

 

357 thoughts on “Biden’s Inner Trudeau: On Guns, the President seems to be Operating Under the Wrong Constitution”

  2. NEWS OR COMMUNIST INDOCTRINATION?

    The MSM reports every last firearm death it can muster up.

    The MSM reports no, or next to no, highway deaths.

  3. BAN CARS

    43,000 U.S. highway deaths per year – 118 U.S. highway deaths per day.
    _________________________________________________________

    “U.S. traffic deaths reached a 16-year high in 2021, according to government estimates”

    “NHTSA, a federal vehicle safety watchdog, estimates 42,915 people died in motor vehicle traffic crashes last year, a 10.5% increase from 2020.”

    – CNBC

    1. You post a lot of stupid comments, George, and that’s certainly among them.

      No one is calling for all guns to be banned, so don’t pretend that calling for cars to be banned would be analogous

      We have regulations for cars to make them safer in the event of a crash.
      We require people to obtain a driver’s license before they can legally drive. People should also have to pass a gun safety test.
      We require people to carry car insurance to drive legally. People should also have to carry insurance in case they illegally harm someone with a gun.

      And if you were to calculate the number of car deaths per person-hour, the ratio would be a lot lower than the gun deaths per person-hour, as most people spend a lot more time per year in cars than carrying guns.

        1. You disapprove of people having to carry car insurance because it’s a “victimless crime”?

          1. There is no, as in NO insurance company that will write a policy to cover a violent crime.
            This is nothing more than a canard

      2. Your analysis falls flat. Someone recently quoted some statistics from 2016. Looking at the numbers is more helpful then listening to an ignorant ideologue who talks too much.

        Gun violence outside of the leftist world is low.

        Take away the 4 democrat strongholds and the state of California deaths, and we remain with ~ 54 deaths per state. Autos kill 680 per state, and drugs today 2,000 per state. Most of our most deadly drugs come across the southern border. Biden has kept the border open to drugs, so if one wishes to reduce deaths, get rid of Biden.

        Thanks to Whig.

        —
        30,000 firearms deaths (us population 324,000,000) .0009% of the pop dies from guns.
        ——
        65% suicide
        15% law enforcement justified
        17% criminal activity, drug, gang, mentally ill
        3% accidental discharge
        ——
        Technical number “gun violence” 5,100
        380 (9,4%) Chicago
        344 (6.7%) Baltimore
        333 (6.5%) Detroit
        119 (2.3%) Washington D.C.
        ——
        —–
        3,825 deaths for the rest of the nation
        75 deaths per state
        —
        California 1,169
        Alabama 1
        ——
        Where are the strictest gun laws? California, Chicago and some other places.

        ====
        Deaths other causes:

        40,000 drug overdose (now I think exceeding 100,000)

        36,000 from the flu

        34,000 from traffic accidents

      3. You are making the assertion that a partial infringement on a right is okay as long as you’re happy with it
        Your view would be that as long as there were single shot hand loaded .22 rifles available, the right would still be in effect.

        Let’s take one of the rights you hold as fundamental and do the same thing to it.
        If you say that you hold no right ‘dear’ to you, I think you’re lying.
        I think you just don’t like the idea that all those people you don’t like have all those guns. It basically makes your political desires impossible.

            1. ME —- See TNYT story: chiefly carbon dioxide. But there are plenty of other heat-trapping, long-lived, trace gasses in the atmosphere anthropogenically.

              1. So John Kerry, and all the Progressives crying about OUR Carbon footprint, whilst they spew more in one month than most of us do in a year??
                Why don’t they do ZOOM meetings instead of spewing all that carbon?? Until they stop…I don’t care. The little bit that I use is nothing.

                1. Your livestock contributes a lot of methane into the atmosphere you know.

  5. Do the Secret Service people carry guns when they protect Biden and Harris? At their homes? How is that legal?

  6. It’s not like we lack data on the effectiveness of strict gun control laws. Just get the gun-related crime statistics throughout the country and identify whether their is a positive or negative correlation with those laws.

  7. Japanese Admiral Yamamoto was supposed to have said, “I would never invade America, there is a gun behind every blade of grass.” Only dictatorships take guns away from (law abiding) citizens. Switzerland is third in the world for citizen gun ownership. They view it as a matter of national security. I don’t mind good background checks and I don’t even really mind red flag laws but they have to be carefully considered. You don’t want someone who just happens to be ticked off because their neighbor didn’t return their lawnmower reporting to law enforcement that the neighbor is a nut case. In Massachusetts you have to take a gun safety class, submit an application to the chief of police, get fingerprinted which is then sent to the state police, before you can get a permit. Not a big deal if you are a person who follows the rules. To buy a weapon (legally) you need to have a firearm license issued by the state. Some people don’t think that the ArmaLite-15 (AR-15 does NOT stand for ‘Assault Rifle”) is a very good rifle. I wonder how these unemployed kids have to money to buy one plus the scope, magazine, etc., it can cost some serious money.

    1. Perhaps, a government run gun redistributive change program a la Libya, Ukraine, American Southwest, Chicago.

      1. Fast and Furious guns run to the Mexican Drug cartels by Obama and Holder!!!

    2. Karen Ann, yes the Swiss keep their military machine guns at home, marching while carrying during the August 1st “Switzerland Day” parade.d. But the ammunition is kept at the armory.

          1. There is nothing to keep the Swiss from buying all the ammo they want for their issue weapons at their own expense, and many do just that.

  8. Since when has any democrat ever cared for what the Constitution stipulates? Their very essence is to destroy the Constitution and the Western culture that gave rise to it.

    1. Abort. First, they came for “our Posterity”. Then they came for other civil rights to limited government (i.e. right-wing). NOW, they come for the Second Amendment. The modern model of The Constitution is political congruence (“=”). Perhaps people… persons can exploit the “burden” loophole.

    2. ….very essence is to destroy the Constitution and the Western culture that gave rise to it.

      You are not too far off from the truth. Pope Francis presciently addressed in 2020 what we are witnessing today in America, as well as Western culture at large.

      15. The best way to dominate and gain control over people is to spread despair and discouragement, even under the guise of defending certain values. Today, in many countries, hyperbole, extremism and polarization have become political tools. Employing a strategy of ridicule, suspicion and relentless criticism, in a variety of ways one denies the right of others to exist or to have an opinion. Their share of the truth and their values are rejected and, as a result, the life of society is impoverished and subjected to the hubris of the powerful. Political life no longer has to do with healthy debates about long-term plans to improve people’s lives and to advance the common good, but only with slick marketing techniques primarily aimed at discrediting others. In this craven exchange of charges and counter-charges, debate degenerates into a permanent state of disagreement and confrontation.

      http://www.vatican.va/content/francesco/en/encyclicals/documents/papa-francesco_20201003_enciclica-fratelli-tutti.html

    4. My question and comment below should have been placed here.

  9. It is hard to take Mr. Biden seriously on this issue given the points he makes. What possible improvement results in the safety of children in school from removing the limited liability laws of the gun makers? On the other hand, there really are existing limitations on the Second Amendment — can you go to any store and buy a fully automatic machine gun?
    This whole gun issue is another example of our political polarity. The extremists on both sides command the floor while most us live in between. With very little knowledge of guns, I suspect ten posters to this list could develop a useful proposal in about three days. The President won’t offer a specific proposal. The Congress reprsents 535 constituencies (House and Senate). The objection is that the Congress does so little; the true marvel is that they get anything done.

    1. “. . . the House January 6 committee . . .”

      A banana republic committee designed to do one thing: keep Trump from running in 2024.

      1. Sam,

        Wanna bet that Turley does NOT call the Jan 6 committee a “banana republic committee?” I guess that makes Turley a NeverTrumper, doesn’t it?

  11. What is it about Second Amendment discussions that brings the “stupid” out in lefties?

    Look at the comments from Silberman et al.

    Full of bile and remarkably stupid.

    1. I’m just asking questions! I want to be educated. You gotta give me credit for trying to learn.

  12. “The key fallacy of so-called gun control laws is that such laws do not in fact control guns. They simply disarm law-abiding citizens, while people bent on violence find firearms readily available.” Thomas Sowell

    1. Exactly, whig98. Hence, my question: why do you tolerate people bent on violence getting their hands on machine guns while the government is restricting their sale to you? You don’t mind being out-gunned by the bad guys?

  13. Professor, you are a serious disappointment. President Biden is correct. Sadly the right wing Republican members of SCOTUS decided to amend the Constitution and excise the well regulated militia language in the Second Amendment …judicial activism of the worst kind. No constitutional right is unlimited. Why is that I wonder? It’s obvious many individual constitutional rights conflict with the constitutional rights of others. Yelling fire in a crowded theater, for example, puts other people in harms way and this interferes with their rights.

    In your view, is the Constitution a suicide pact where we allow anyone regardless of their Atem mental status or criminal record to buy and own as many weapon as they want and carry those weapons where ever they want when ever they want…except of course to NRA meetings, of course? Apparently your answer is Yes.

    Being the darling of the right wing must mean an awful lot to you. It’s a disappointment to those of us who joined this threat when you were actually interested in the law and not pushing right wing ideology and talking points.

    1. Holmes

      If you are going to attack Turley, try something other than tired cliches.

      Pretty banal post.

    2. It’s not a constitutional right. It is a constitutional protection of a God given right.

        1. I don’t know what Jesus carried but Peter carried a sword in Gethsemane. Clearly Jesus would have known that Peter was armed

    3. Justice Holmes, your lack of understanding of history is beyond understanding. The militia men did not just use guns provided by an armory but supplied their own personal weapons. You conveniently leave out the part that says that the populace should not be kept from the possession of their own armament. When forming your opinion historical context is of no import. Your testimony is not to the facts of the mater but an outright display of your personal bias. Also you do not take into account a pattern of oppressors in the history of the world that have concurred with your position. These are the men who are your brothers in arms. You and these oppressors are of a like mind. Your lack of understanding of the history of the world means that you are destined to repeat it. You have chosen to be naive about the world’s history but you can rest assured that I will not go there with you.

    5. SCOTUS decided to amend the Constitution and excise the well regulated militia language in the Second Amendment

      Who exactly do you want to regulate and enforce this militia. I can’t find any controlling constitutional authority. (not leftists care about the constitution)

  14. People like Biden and the others authoritarians, most of them Democrats, are the reason we have so little movement on any effective policies.
    At every tragedy they erupt from the woodwork with their wild eyed calls for confiscation.
    Sides dig in and nothing gets done.
    I think they want the issue, not solutions.

  15. Americans should beware any politician wanting to null the Second Amendment and learn from Communist Cuba.

    One of the more common questions Americans would ask me growing up re: Fidel Castro in Cuba:

    Q: “why don’t Cubans on the island take him out?”
    A: “Fidel took away our guns when he came to power”

  16. “Red Flag Laws” are rife for abuse.

    Although this article is “old,” and the policy is not as binary as it once was, it demonstrates a predicament that is faced exclusively by Veterans who receive benefits from the US Department of Veterans Affairs. On June 1st, I had my first “annual” checkup in three years with my primary VA doctor. Before actually seeing the doctor, the nurse who took my blood pressure, temperature, and pulse asked me a bevy of questions that were strictly concerning my finances. Had I answered any of those questions in a manner that suggested I lack financial resources to meet my needs, the VA can (and sometimes does) appoint a fiduciary to manage my VA benefits. They would do this entirely of their own accord, and without any prior notice.

    There is, of course, a process to contest this determination – after it has taken effect, but it requires contacting the Fiduciary Hub – a nearly impossible task. I have had circumstances where I have had to have appointed fiduciaries removed due to a conflict of interest, and the Fiduciary Hub refused to respond or denied that divorcing spouses presented no conflict, that it took me to draft a Petition for a Writ of Mandamus to get them to respond or react.

    This is important because I suspect that the authoritarian statists who comprise our “elected” “leaders” are prone to use the authority of the executive agencies to accomplish their disarmament goals. I predict the following: A veteran receiving VA benefits admits that money is tight; the VA appoints a Fiduciary and reports the determination to the National Instant Criminal Background Check (NICS); ATF and other federal “law enforcement” entities inform the Veteran that s/he has been deemed ineligible to possess firearms and must surrender those possessed. The Veteran is informed that s/he can contest the determination through the VA administrative process – which is illusory at best.

    https://thehill.com/blogs/pundits-blog/defense/295484-va-is-restricting-veterans-gun-rights-without-due-process/

    1. Do you have a service-connected disability? If you receive disability compensation of 10% or more, you don’t have to provide financial information in order to receive healthcare from the VA.

  18. The Twilight Amendment discovered in emanations from the penumbras of The Constitution is an open-ended, non-consensual super social contract that laid a progressive path and grade to planned parenthood, planned parent/hood, transgender conversion therapy, redistributive change, diversity [dogma] (i.e. color judgment, class-based bigotry), Mengele mandates, etc.

  19. Usual name calling and screaming back and forth. Usually little discrete information that is accurate. National firearms act of 1934 and gun control act of 1968 contributed to the regulation of automatic weapons, “machine guns”. Primarily the 1934 act was passed because of the use of automatic weapons in the prohibition era and the attempted assassination of FDR in 1933. . The star weapon of the time was the Thompson Submachine gun which was a highly effective machine gun that was handheld and could carry a stick magazine or drum of .45 caliber bullets. The Thompson was then known as the “Tommy Gun” of fame.Highly effective in World War 2 but too expensive to make in massive quantities and was partially succeeded by the “Grease Gun” a very functional, stamped metal, low cost submachine gun which also fired the .45 caliber ACP round used in the Thompson and the 1911 handgun. A previous writer mentioned that no machine gun produced after 1986 can be registered so functionally machine guns are not legally available. A submachine gun is basically a machine gun that s handheld and fires a handgun round like a 9 mm or .45, primarily. Assault Rifles fire a rifle caliber round and are automatic usually with a switch so you can fire single shots. Legal AR 15’s fire only single shots. I am a 2nd amendment supporter and own a lifetime concealed carry permit but I think there are several very practical things that can be done to reduce risk and curtail mass shootings if they are thoughtfully planned and applied. But every time this President makes such a speech as last nite or one of his progressive allies goes round the bend then the opposing side just digs in their feet deeper. Their is an opportunity for some reasonable measures but inflammatory, overwrought speeches make it more difficult if not impossible. I thought Trump often had a significant tendency to figuratively shoot himself in the foot or head and undo much of what he was trying to accomplish. Biden seems to be exceeding that tendency by leaps and bounds. Too many people talking, nobody listening so no one learns anything.
    It is true that you never learn anything while talking but listening does wonders for edification.

    1. Did you catch the black patient who shot and killed his Black Orthopedic surgeon (Harvard grad!) in OK? I am not sure what surgery he had but it is concerning he had ongoing post-op. His decision to kill his surgeon was beyond tragic, but I wonder how accessible the physician was to his patient post-op. I wonder also what his medical and psych hx were.

      Physicians are burnt out, are inundated with administrative tasks, and patients are more alienated than ever. This is not medicine

    2. You may have valid points but I’m confident that after about 500 words, every reader tuned out.
      Brevity is the soul of wit.

  20. Amazing how this administration never puts any effort on dealing with the criminal causing the explosion of crime? Is this their idea of reparations for blacks? We are facing the worst economy in decades, fuel cost, food items missing from the shelves, 401k’s to 201k’s and their heads are up their assets. We’re facing something catastrophic and it’s going to make the “summer of love” look like a Billy Graham tent gospel.

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