Biden’s inner Trudeau: On guns, he seems to be operating under the wrong Constitution

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.