Fact Checking Joe Biden On Guns

In an interview with Wired, Joe Biden, the Democratic Party’s presumptive nominee for president, was asked for his “stance on gun control.”

Biden summed up what he’d like to do with your Second Amendment rights this way:

“Number one: Assault weapons are weapons of death. They have no rationale for being owned by individuals on the street. They should be outlawed. They were eliminated. They came back—we had a 10-year elimination of them. From the very beginning you weren’t allowed to have certain weapons. You weren’t allowed to own a cannon during the Revolutionary War as an individual. Anybody think you should be able to go out and have a machine gun these days? And the answer is no, we have a rational policy. No amendment to the Constitution is absolute.

Secondly, everyone should have a universal background in order to determine whether they are capable of owning a weapon, whether they should own a weapon.”

Okay, there’s a lot here to unpack.

First of all, semi-automatic firearms are the most commonly sold firearms today. This design is a 19th century invention. The AR-15-type rifles Biden is likely referring to as “assault weapons” have been sold to the American public since 1963, when the U.S. military began to adopt the similar-looking, but fundamentally different, M16. FBI crime statistics show, year after year, that rifles of any type are used in less than 3% of homicides; semi-automatic rifles are a fraction of that. And these guns were not “eliminated” by the 1994 Assault Weapons Ban; there was, rather, a ban on the manufacture and sale of new firearms that were deemed “assault weapons” under the law.  The millions of guns that already lawfully existed remained lawful to own and transfer.

As far as a “rationale” for citizens owning these firearms go, semi-automatic rifles are very popular and effective for home-defense. Hunters also commonly use these firearms. They are also used by many who enjoy the shooting sports. They are commonly owned and used and have been for generations.

Then again, we do have a Bill of Rights, not a Bill of Rationalizations.

Biden’s odd mention of an alleged ban on the private ownership of cannons during the Revolutionary War is an attempt to use an extreme example in order to concoct a rationale to ban a commonly owned and long-legally sold firearm type—others have used this fallacious argument by stating that citizens should not be able to purchase cruise missiles.

By the way, Biden is wrong about cannons during the American Revolution, as Historynet.com reports: “And as tensions between the mother country and the colonies had grown, Britain had banned manufacture of artillery in America, declaring it both illegal and disloyal to cast guns. Nonetheless, with the outbreak of hostilities, the Continental Congress and the governing bodies of the colonies called upon America’s ironmasters to manufacture cannons—and to do so with all haste. At the risk of their lives and property, many complied.”

So, the ban was from the British in order to disarm Americans at the outset of the war.

As for whether American citizens can “go out and have a machine gun these days,” the answer is yes, they can, as long as acquiring and possessing one does not violate the laws of the state in which they live, and provided they comply with numerous federal requirements.

Biden is correct that “No amendment to the Constitution is absolute.” But he is not correct that this means it is constitutional to ban commonly owned firearms or that it is constitutional for the government to reduce the Second Amendment to a right in name only.

On June 26, 2008, the U.S. Supreme Court, in Heller v. D.C., ruled 5-4 that the Second Amendment does, indeed, protect an individual right. The Court struck down D.C.’s onerous gun law, which outlawed handguns altogether and even banned rifles and shotguns from the home unless they were rendered useless for personal protection. Justice Antonin Scalia, writing for the majority, wrote: “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

The majority opinion in Heller did rule that the Second Amendment protects an individual right that can be regulated, just as any other right can be subject to regulation. Justice Scalia wrote, “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Justice Scalia went on to say the Court’s decision “should not be taken to cast doubt on many existing restrictions against gun possession, including handgun possession by felons and the mentally ill, possession in schools and government buildings and rules governing commercial arms sale. But outright bans on the Second Amendment right, like the First Amendment’s free speech, are not constitutional.”

The Heller ruling did leave room for future rulings to further define this right, but Biden is clearly wrong that an outright ban on popular semi-automatic rifles is constitutional.

Biden’s second point, that “everyone should have a universal background in order to determine whether they are capable [emphasis mine] of owning a weapon,” is frightening and telling. He didn’t say “legally prohibited” or some other such phrase; he said “capable,” a vague term subject to interpretation that would allow a government entity to arbitrarily decide who can handle a right that has been specifically protected from government infringement.