Well Regulated will return to its normal schedule soon, but for this edition (which will also be published in the pre-election printing of The Cornell Review) Well Regulated will be responding to Joe Biden’s “Plan to End Our Gun Violence Epidemic” from his website. This article will analyze his claims step-by-step, providing commentary and criticism. By the time the article is finished, it should be clear that a Joe Biden presidency presents a clear and present danger to every American’s right to keep and bear arms. If Joe Biden wins the presidency, then the following policies are what the nation will be subjected to. These policies are extreme, unconstitutional, and would not reduce deaths in the United States. After reading the following analysis, it should be clear that a vote for Joe Biden would spell doom for the First Amendment, Second Amendment, Fourth Amendment, and Fifth Amendment. The future of our nation, its fundamental freedoms, and everything it represents are at stake.
**The following section features the titles used by the Biden campaign (in bold), with analysis and description afterward. Due to formatting restrictions online, sections and subsections have been assigned numbers/letters.**
The first numerical claim presented by the Biden campaign is that “almost 40,000 people die as a result of firearm injuries every year in the United States”, citing a CDC National Vital Statistics Reports report from June 24, 2017. Note the careful wording choice used by the campaign in their section on “gun violence”. According to the report, 23,854 of those annual firearm deaths were suicides, 486 were accidents, and 14,542 were “assault (homicide) by discharge of firearms”. The first two statistics are not indicative of “gun violence”, but rather mental health issues and unfortunate circumstances, respectively. As for homicides, homicide is simply when one person kills another person and the term is not synonymous with murder. According to the FBI’s Uniform Crime Report for 2017, there were 10,982 firearm murders in the US. This number would be the more honest one to use when discussing “gun violence”, and the nature of the context implies to the reader that the issue of violence with firearms in the United States is almost four times larger than it is in reality. In the interest of fairness, the website does say “Some of these deaths and injuries are the result of mass shootings […] Others are the result of daily acts of gun violence or suicides […].” However, the verbiage of the section is blatantly misleading to anyone who does not properly analyze the claims.
Next, Biden’s campaign totes his record of “tak[ing] on the NRA” with the Brady Act and the 1994 Assault Weapon Ban. The campaign claims that the Brady Act has “kept more than 3 million firearms out of dangerous hands”, but the actual number cited is denied background checks. Filing a background check through the National Instant Criminal Background Check System (NICS) is mandatory when purchasing a firearm from a dealer, so one person will file multiple background checks throughout their life, and one check does not equal one firearm, there is no limit to the number of firearms which can be purchased through one. Moreover, an estimated 99.98% of NICS denials are false positives, meaning that approximately 60,000 NICS checks were denied for actual prohibited possessors. When considering the reasons why someone can become a prohibited possessor, that number becomes even less impressive. Question 21e of ATF form 4473 asks:
“Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”
If someone was arrested for marijuana possession, they can be denied their right to keep and bear arms. How many people may have gone into a gun shop, looking to purchase a weapon for self-defense, and been turned away because they had been arrested once for a marijuana cigarette? More to the point, how many genuinely dangerous people who were denied a sale because of their criminal history simply went out and purchased a gun illegally? Mandatory background checks have been a massive failure that has infringed on citizens’ rights with an expensive, ineffective, and inefficient bureaucracy, all while doing nothing to actually reduce crime. It is truly bizarre to boast about having voted to implement such a wasteful and disastrous policy. Almost as bizarre is describing that vote as “taking on the NRA” when Wayne LaPierre himself advocated for the NICS system in front of the House Judiciary Crime Subcommittee on May 28, 1999.
The Biden campaign proceeded to boast about how Joe Biden “knows how to make progress on reducing gun violence using executive action” with a link to an archived page from the Obama White House’s website. On the site is a description of the Obama administration’s response to the Newtown, Giffords, and Aurora shootings, combined with quotes such as the following from the former president:
“This is not something where folks are going to be studying the issue for six months and publishing a report that gets read and then pushed aside. This is a team that has a very specific task, to pull together real reforms right now.”
Fundamentally, this response indicates a presumption that restricting and regulating firearms is the solution to violence, when such a notion could not be further from the truth. Unfortunately, there is not enough space in the newspaper to fully analyze and criticize the entirety of the policies, but suffice to say, it is clear that they did not study the issue for six months.
In a final statement before detailing the actual policy proposals, the campaign claims Biden will pursue “common-sense” gun policies and that “It’s within our grasp to end our gun violence epidemic and respect the Second Amendment, which is limited.” First, there is not a “gun violence epidemic” in the United States. This is not to say that there are no issues with violent crime, but guns have nothing to do with it, except as a key part of the solution. Second, the right to keep and bear arms, like all rights, has limits. Running down the street with a large spiked mace, swinging it in the general direction of passersby would certainly be keeping and bearing an arm, but would not be protected. The limits on the Second Amendment are few and far between, existing only on the extreme fringes of behavior and weaponry – a far cry from the current onerous restrictions placed on the right.
(1) Hold gun manufacturers accountable.
Biden voted against the Protection of Lawful Commerce in Arms Act in 2005, a law that protects firearm manufacturers from civil suits when their products are misused. The campaign blatantly lies when saying that this “protection [is] granted to no other industry.” To use an analogy: if someone in a Corolla saw me walking down the street and decided to run me over, I would never be able to sue Toyota. Firearm manufacturers should not be held liable just because a criminal decides to use one of their products in the commission of a crime. Legislation to leave firearm manufacturers vulnerable to excessive litigation and liability for the actions of people they have no control over is nothing more than a roundabout way to destroy the firearms industry, and by extension, the people’s ability to acquire arms.
(2) Get weapons of war off our streets.
Unfortunately, the people’s ability to exercise their birthright to every “terrible implement of the soldier” (Tenche Coxe, 1788) has been severely restricted for decades by legislation, most significantly the NFA and Hughes Amendment. In support of renewing the 1994 AWB, the campaign cites a Newsweek article on a then-unpublished study which argued that the ‘94-’04 ban reduced the lethality of public mass shootings. As one might guess, the entire study was bogus. Not only did it use a definition of “mass shooting” which differs from that used by the FBI, but it also played fast and loose with other data, such as including firearms not classed as “assault weapons” by the ‘94 AWB and then arguing that the ban reduced the lethality of public mass shootings. In a letter to the editor of the New York Times (which also publicized the study), economists Dr. John Lott and Dr. Carl Moody said that “the share of mass public shootings with assault weapons did indeed fall from 30% in the pre-ban period to 25% during the ban, it fell to just 14.8% in the post-ban period. If the ban was really the driving force behind the change, it makes little sense that the sharpest drop would occur after the ban expired.” In fact, evidence shows that the presence of concealed carry handguns is one of the largest determining factors in not only how likely a public mass shooting is to occur, but its lethality. The most effective means to reduce the number of deaths from public mass shooters would be to do away with restrictions on the carrying of handguns.
(2a) Ban the manufacture and sale of assault weapons and high-capacity magazines.
In this section, the reader is treated to the tired argument that because the federal government regulates the number of shells a gun can hold while duck hunting, this means that there is more care given to the safety of ducks than children. It is ridiculous on its face, in large part because the analogy doesn’t even make sense. There is no federal limit on shotgun magazine capacity, or even the number of shells a duck gun can hold, merely that there must be a temporary limiter in the magazine while actually hunting. In other words, a proper analogy would be allowing any magazine capacity but saying that a murderer can only load three rounds in their gun while killing. Moreover, there are plenty of other species whose hunting has no magazine restrictions – the magazine limit on migratory bird hunting was put in place due to over-hunting and commercial hunting almost a century ago.
Biden’s campaign also describes how the new AWB would not be a feature-based ban like the original in 1994, but no other details are given. Finally, the threat of executive action is used again, but in reference to the import of “assault weapons.” For those unaware, the ATF already places excessive restrictions on the importation of “non-sporting” arms.
(2b) Regulate possession of existing assault weapons under the National Firearms Act.
Eighty-six years ago, during the House Committee on Ways and Means’ hearings on the NFA (then known as H.R. 9066) the Attorney General of the United States openly admitted that no criminal would follow the law and that it would not prevent any criminal from arming himself; this was an accurate prediction. Biden’s desire is to add “assault weapons” to the list of NFA items: machine guns, suppressors, SBRs, SBSs, destructive devices, and AOWs (the last three of which are not even mentioned in the campaign’s description of the NFA). The typical gun owner owns dozens of magazines and multiple firearms. Under this proposal, gun owners would owe thousands of dollars to the federal government for no good reason and without any evidence to support its constitutionality or efficacy.
Although the campaign claims that the NFA has prevented these weapons from being commonly used in crimes, nothing could be further from the truth. The only source cited for this claim is a two-page document by the Giffords Law Center which itself offers no statistics or actual evidence. Anyone who pays attention to crime news is very familiar with police photos of machine guns and hacked up rifles/shotguns (illegal SBRs/SBSs) that are found in the possession of criminals. Even ignoring police confiscations during typical enforcement of the law, there is a mountain of evidence from the recent riots which contradicts this argument. There are countless videos of Molotov cocktails and similar homemade explosives being used in cities such as Portland – Molotov cocktails are destructive devices under the NFA.
(2c) Buy back the assault weapons and high-capacity magazines already in our communities.
The campaign never explains how the government would buy back something it never owned. Furthermore, the government is funded by taxpayer money, meaning that citizens would be returned a paltry sum of what was already their money in return for firearms which were also purchased with their own money. Moral issues aside, gun “buybacks” never offer anything even remotely approaching the value of the firearms, many offering only $50-200 per gun.
(2d) Reduce stockpiling of weapons.
Once again, the campaign provides no evidence or argument as to why “stockpiling” weapons is harmful to oneself or society. The proposed policy would limit individuals to one firearm per month. Personally, I have yet to see any historical evidence that the founders would have endorsed such a program. Jurisprudence aside, from a pragmatic standpoint, sometimes people need to purchase multiple firearms less than a month apart for reasons ranging from purchasing investment pieces to suddenly requiring a weapon for self-defense.
(3) Keep guns out of dangerous hands.
As stated above, the NICS system has done nothing to prevent violent crime of any kind. Just as with so many other failed government policies, the Biden campaign claims that the issue was not the inherently flawed premise or terrible execution of the policy, but rather that it was not extreme enough.
(3a) Require background checks for all gun sales.
The campaign cites a 2017 study that found that of 1,613 adults who admitted to either owning a firearm or living with someone who owns a firearm, 22% said that the last firearm they purchased was without a background check. Online surveys were used to compile the data and the fact that this was a survey about firearm ownership already calls into question how forthcoming respondents would be (or how many firearm owners would even be willing to respond). Inclusion of non-firearm owners – cohabitants/co-residents with firearm owners – also casts suspicion on the reliability of the raw data. This is just one example of how the methodology in the study is flawed.
Criticism of the study is not meant to be an endorsement of background checks. Rather, it is meant to demonstrate how poor the sourcing and information used by the campaign is. Poor evidence aside, the purpose of making this claim is so that the campaign can then argue that it must close the “gun show and online sales loophole”. Following the law is not a loophole; this would be the equivalent of calling driving 55mph in a 60mph zone a “loophole” because in some areas you can only drive 30mph. If you purchase a firearm from a dealer at a gun show, you still have to get a background check. The same applies to purchase firearms online: no background check is necessary to purchase the weapon, but in order to take possession of it, you need to get a background check (unless it’s an antique or if it’s a C&R and the buyer has an 03 FFL).
(3b) Close other loopholes in the federal background check system.*
*This portion only mentions “the boyfriend loophole” but this will be addressed later.
(3b-1) Reinstate the Obama-Biden policy to keep guns out of the hands of certain people unable to manage their affairs for mental reasons, which President Trump reversed.
The policy being referred to essentially prohibited seniors who could not manage their finances from purchasing guns. It should be obvious that many seniors who cannot properly manage their financial affairs are perfectly capable of using and owning a firearm responsibly. Moreover, the elderly have a greater need for firearms to compensate for being less capable of adequately protecting themselves.
(3b-2) Close the “hate crime loophole.”
Under this proposal, anyone convicted of a “hate crime” misdemeanor or who received an extended sentence for a misdemeanor crime due to its “hateful nature” would be a prohibited possessor. It should go without saying that the rapidly expanding umbrella of what constitutes “hate” (ie. hate speech) means that such a provision would essentially allow the disarmament of anyone with a belief that the government (or those in it) has not approved. In New York City, calling an illegal alien an illegal alien can result in a fine of $250,000. Apply this type of standard nationally, and then restrict access to arms based on it. That is undoubtedly the end goal of this type of legislation.
(3b-3) Close the “Charleston loophole.”
If the government takes more than three days to process your background check, you can claim your firearm without a completed check. Biden seeks to expand this to ten business days (12-14 full days) meaning that because of the government’s failure to run a functioning bureaucracy, you could be denied your rights for half a month. For a real-life example of how waiting for a gun kills, look no further than Carol Bowne. Bowne had a violent ex-boyfriend who she knew would try to hurt her, so to keep safe, she began the process to acquire a New Jersey handgun license. While the New Jersey government was dilly-dallying over her application, Bowne’s ex-boyfriend went to her home and murdered her.
(3b-4) Close the “fugitive from justice” loophole created by the Trump Administration.
In 2017, the Trump administration followed the guidance of the ATF – whose primary purpose is to implement gun laws – and amended the classification of a fugitive from justice to only include those who had fled the state to avoid prosecution. This definition change was at the behest of the most relevant regulatory agency and ensures that fewer people are denied their rights.
(4) End the online sale of firearms and ammunitions.
Biden is also seeking to ban purchasing firearms, ammunition, kits, and gun parts online. In recent years, building AR-15 variants and other firearms (Glock variants, 10/22 variants, etc.) from parts kits or separately purchased parts has become far more popular. This aspect of firearm culture is in large part dependent on online sales as they often offer better prices and universally offer a better selection than a brick and mortar store. Forcing people to purchase from physical stores would dramatically reduce competition, thereby increasing prices, making firearms even less accessible, especially to the poor, who are more likely to need a firearm and ammunition for self-defense.
(5) Create an effective program to ensure individuals who become prohibited from possessing firearms relinquish their weapons.
In short, Biden would like to create a program whereby if you become a prohibited possessor, the FBI and ATF would remove your firearms. This proposal should terrify anyone concerned with their rights and government overreach in general. However, when taken in context with the proposed categories of people who would be added to the prohibited possessor list, this becomes even more alarming, as it would literally provide a framework for unapproved speech to be used as justification for forced confiscation.
(6) Incentivize state “extreme risk” laws.
An analysis of Connecticut and Indiana (who have some of the oldest laws, 1999 and 2005 respectively) found that there was no statistically significant reduction in mass shootings, homicides, or suicides. Red flag laws are completely useless at best, but at worst they provide a means for any vindictive LEO or civilian with a grudge to intrude upon someone’s life, causing them significant injury and imposing a large financial burden. If a coworker doesn’t like you, all they would have to do is make the claim that you’re a danger to yourself or others, and the government would send the police to disarm you before you can even defend yourself in court. Not only are these programs ripe for abuse, but their overuse would also be incentivized by the federal government who would fund their operation.
(6) Give states incentives to set up gun licensing programs.
Just as with the red flag laws, Biden wants to use federal money to establish licensing schemes nationwide. Such legislation obviously infringes on the core purpose of the Second Amendment: self-defense, be it against a common criminal or tyranny:
“In a single state, if the persons entrusted with supreme power become usurpers, the […] citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.”
– Alexander Hamilton, Federalist No. 28
Beyond the obvious issues of constitutionality and efficacy, licensing schemes are well known for being dens of corruption. One particularly notable example is New York City, whose licensing division has been exposed for corruption countless times.
(7) Adequately fund the background check system.
In 2013/2014, the Obama/Biden White House put tens of millions of dollars towards incentivizing the dissemination of records for background checks. This is by far one of the least objectionable proposals, as it essentially amounts to the government sharing data it already has within itself. With that said, the entire concept of a background check system has already been shown to be ineffectual at actually reducing violent crime, and as such, pouring tens of millions of dollars into a useless system is not a proposal that should be given any serious consideration.
(8) Addressing the deadly combination of guns and domestic violence.
Unfortunately, the statistics cited on the website lead to pages which no longer exist, with the exception of one study on femicide by domestic abusers. The study in question identified a number of factors which increase or decrease the likelihood of femicide by a domestic abuser but was not a firearm specific study. With that said, since Biden’s campaign has made violence against women a factor in their gun policy, it should also be a factor in the rebuttal. Research into the efficacy of self-defense against stranger rapists found that when women fought back against their rapist, there was a 31% chance of completion, and 40% of physical injury to the victim. However, when women were carrying firearms, the probability of completion was 0.1% percent and the likelihood of physical injury was 0.0%. Once again, the data shows that the best means of self-defense is the firearm.
(8a) Establish a new Task Force on Online Harassment and Abuse to focus on the connection between mass shootings, online harassment, extremism, and violence against women.
There is nothing inherently wrong with doing research, the more study into subjects such as these the better. However, it is unlikely that any task force appointed by a Biden White House would be impartial and fair in their analysis. Instead, any findings would likely be skewed and used to push an agenda. When Britain set its police loose on “online harassment and extremism”, the results were terrifying, with over 3,000 Britons being detained and/or arrested each year for comments made online which were deemed to be offensive. Again, in context, this policy is particularly terrifying, as anyone who has unapproved beliefs or tastes could end up with their rights being taken away.
(8b) Expand the use of evidence-based lethality assessments by law enforcement in cases of domestic violence.
Just as above, there is nothing objectionable about wanting to improve support systems for victims of domestic violence. However, it is a real threat that a Biden presidency would simply use the pretext of such a program to punish gun owners and conservatives (regardless of the threat they pose).
(9) Make sure firearm owners take on the responsibility of ensuring their weapons are used safely.
(9a) Put America on the path to ensuring that 100% of firearms sold in America are smart guns.
Biden claims that he plans to eventually require that all firearms are “smart guns”, ie. firearms with some type of computer in them to restrict their use. “Smart guns” are aggressively expensive, and not even safe, as the designs are easily bypassed with rudimentary tools such as magnets. Furthermore, have you ever tried to unlock your phone with the fingerprint scanner when your finger was just a little damp, or off to the side of the scanner? Imagine having to go through that process as you’re being attacked by a violent criminal.
(9b) Hold adults accountable for giving minors access to firearms.
This proposal would criminalize a minor having access to a firearm, even if the minor never actually accesses it. There is no evidence that so called “safe storage laws” actually prevent child fatalities.
(9c) Require gun owners to safely store their weapons.
As stated above, “safe storage laws” do not prevent accidental deaths. Furthermore, there is evidence that such laws actually result in deaths when firearm owners cannot access their weapons quickly enough during a home invasion.
(10) Empower law enforcement to effectively enforce our gun laws.
(10a) Prioritize prosecution of straw purchasers.
The Biden campaign claims that he would “make all straw purchases a serious federal crime”, but it’s already a felony that is frequently prosecuted.
(10b) Notify law enforcement when a potential firearms purchaser fails a background check.
As stated earlier, 99.98% of background check denials are false positives for reasons such as a purchaser having the same name as a prohibited possessor. Biden wants to send denial information to LEOs who would then be allowed to “follow up and ensure prohibited persons do not attempt to acquire firearms through other means.” Imagine if you got a false positive on your NICS check, even though you were a law abiding gun owner, and the police were sent to your home to confiscate your weapons; punishing citizens for bureaucratic failures.
(10c) Require firearms owners to report if their weapon is lost or stolen.
This is one of the less offensive policies from the Biden campaign, but it is still ripe for abuse and serves to marginalize firearms ownership. Depending on the verbiage of the legislation, anyone who had their firearm stolen while they were on vacation could be prosecuted. What about those who can’t shoot on a regular basis, and find after a lengthy hiatus that one of their firearms is missing? Not only would law-abiding Americans be prosecuted as a result of criminal activity against them, but the fear of such prosecution alone would keep many from even considering firearms ownership. Moreover, what other items have mandatory reporting if lost or stolen?
(10d) Stop “ghost guns.”
This proposed law would regulate non-firearms (parts kits) as though they were complete weapons, and logically this would extend to any firearm part, meaning that you would have to pass a NICS check just to purchase spare parts. More importantly, he would ban the downloading and proliferation of code and files to 3D print firearms. The DOJ has already tried to regulate CAD files under ITAR, and was sued by the Second Amendment Foundation on behalf of Defense Distributed. Ultimately, the DOJ settled, ceasing to regulate files and paying compensation to the plaintiffs. There is no argument to be made that code/computer files of firearm designs are not protected by the First Amendment. This policy would impose a background check (which usually costs ~$20) on speech, flying in the face of the Supreme Court precedent set in Murdock v Pennsylvania (1943) that “A State may not impose a charge for the enjoyment of a right granted by the Federal Constitution.”
(10e) Reform, fund, and empower the U.S. Justice Department to enforce our gun laws.
This section provides no actual details on the proposed policy other than the Attorney General would have to deliver restructuring proposals within 100 days of Biden taking office, that there would be a reallocation of funds, and increases in the frequency of FFL audits.
(10f) Direct the ATF to issue an annual report on firearms trafficking.
Again, this policy is not overtly offensive, but would likely be abused and twisted to justify further infringements on our rights.
(11) Tackle urban gun violence with targeted, evidence-based community interventions
The proposals for dealing with urban violence are primarily social policies as opposed to firearm policy, and are therefore outside the focus of this column. However, there is no mention of the single largest cause of urban violent crime: fatherless homes. From single parent homes (the overwhelming majority of which are single mothers) come 80% of rapists motivated with displaced anger, 90% of all homeless and runaway children, 63% of youth suicides, 71% of all high school dropouts, 75% of all adolescent patients in chemical abuse centers, 70% of juveniles in state-operated institutions, 85% of all youths sitting in prisons, and 70% of gang members. Restoring the nuclear family is essential to creating a peaceful nation.
(12) Dedicate the brightest scientific minds to solving the gun violence public health epidemic.
The Biden campaign campaign acknowledges that the CDC is not prohibited from studying gun control, but claims that they can’t because of a lack of funding. This is blatantly false. CDC research into firearms found that there were 39,740 firearm related deaths in 2018, but that there are 60,000-2,500,000 defensive uses of firearms per year.
(13) Prohibit the use of federal funds to arm or train educators to discharge firearms.
According to a Rasmussen poll from February 28, 2018, 43% of all adults and 59% of parents with children of elementary or secondary school age support incentivizing teachers to carry firearms (although this number has fluctuated). Between 2014-2017, there were approximately 13-16 cases where citizens with concealed firearms saved lives during public attacks. To put this in percentages, in 13.5%-16.5% of public attacks, concealed carry saved lives. This is especially notable when we consider that around 98.4% of public mass shootings occur in gun free zones. When civilians carry guns, public mass shootings are less frequent and less severe. There is no reason why incentives should not exist to make sure that teachers who wish to carry a firearm are well trained.
(14) Address the epidemic of suicides by firearms.
Red flag laws and “safe storage” laws would not help save lives, they have no significant impact in reducing any type of firearm death, including suicide. Suicide is a terrible issue facing this nation, but guns are not part of the equation is preventing people from taking their lives.
(15) Supporting survivors of violence and their communities.
The campaign argues that fear of school shootings “is having a noticeable impact on the mental health of Gen Z”, but neglects to address the reality that school shootings are exceedingly rare. Mass shootings of any kind only account for .24% of gun deaths in the US, but public perception is that they account for 25% of all gun deaths. Polititicans, activists, and the media have used school shootings to justify extreme anti-gun policy, and now Biden would like to punish gun owners for a problem they did not create. In this section, the campaign mentions domestic violence again, and again they ignore the reality that victims of abuse (especially women) need firearms to protect themselves and their loved ones from abusers.
(15a) Make federal programs more trauma-informed.*
(15b) Create a network of trauma care centers.*
(15c) Train health care and other service providers in trauma-centered care.*
*Use of social workers and change to social policy is not directly related to firearms, and is outside the purview of this column.
