Speaker of the House Nancy Pelosi (D-Calif.) and other like-minded members of Congress need only a few seats this election to usher in draconian restrictions on the right to keep and bear arms.
NRA members shouldn’t lack for motivation to vote Nov. 8. In fact, President Joe Biden and his full-spectrum war on Second Amendment rights should have gun owners racing to the polls.
The foremost threat is extreme gun-control legislation. On July 29, the U.S. House of Representatives passed a ban on commonly owned semi-automatic firearms and standard-capacity magazines. Thanks in part to the filibuster, the legislation hasn’t passed the U.S. Senate. However, Biden has made clear that if things go his way in November, banning guns is one of his top priorities. On Aug. 25, the president told a crowd in Maryland, “If we elect two more senators, we keep the House—and Democrats, we’re going to get a lot of unfinished business we’re going to get done … we’ll ban assault weapons.”
Obviously, this extreme gun ban is a far cry from the claims that many of these lawmakers made when running for office. The bills passed by the House should put to rest any claim that the current House majority is seeking any type of “reasonable” gun-law reform. (Of course, to those who want to completely eliminate our right to keep and bear arms, any additional burdens on lawful gun owners will be “reasonable.”)
In addition to the gun and magazine bans, the House also passed bans on private transfers of firearms, legislation to delay lawful firearm sales, and a bill to create a procedure for the federal government to seize firearms without due process of law. When it came to gun control, no bill was too extreme for the current anti-gun House majority.
But, without a Senate willing to change its rules to enact the Biden-Harris gun-control agenda, the president and Attorney General Merrick Garland spent the first half of his term undermining the Second Amendment by executive fiat. These dubious exercises in executive power came after President Barack Obama’s White House correctly acknowledged that they had done everything in the executive branch’s authority to target firearms.
In May 2021, Biden’s ATF (overseen by Garland’s Department of Justice) published a notice of proposed rulemaking 2021R-05F, concerning the “Definition of ‘Frame or Receiver’ and Identification of Firearms.” The rule altered the Code of Federal Regulations to effectively prohibit the sale of unfinished frames or receivers, sometimes called “80%” frames or receivers, that law-abiding gun owners use to make their own firearms. A final version of the rule was published on April 26 and the new regulation went into effect on Aug. 24.
As discussed in more detail in my column this month, this executive measure seeks to make it harder for law-abiding shooters and hobbyists to make their own firearms for personal use, a right Americans have enjoyed that predates the republic. Violent criminals aren’t typically known for a strong work ethic, which is why the idea of lawbreakers tinkering away in a workshop when firearms can be accessed by criminal means will strike sensible people as farcical. This is borne out by the data. A Department of Justice survey of state and federal inmates published in 2019 found that among those inmates who possessed a firearm at the time of their offense, 75% obtained the gun “Off the street/underground market,” “from a family member or friend, or as a gift,” or by theft.
In addition to targeting a time-honored American tradition, the rule contained some lesser-discussed changes to federal regulation. Chief among these involved the ATF’s firearm-tracing regime. When purchasing a firearm from a Federal Firearm Licensee (gun dealer or FFL) the buyer must fill out an ATF Form 4473 with personally identifying information. Prior to the rule, FFLs were required to maintain a record of these Form 4473s for 20 years or until they went out of business, at which point the records must be sent to ATF’s National Tracing Center (NTC). According to proponents of this scheme, if a gun is recovered at a crime scene, then manufacturer records and the Form 4473 would help track the firearm to the initial retail purchaser, which, in theory, could assist in identifying the perpetrator.
The 20-year limit on required retention of Form 4473s ensured that the ATF could not compile a complete record of retail firearm sales—which would amount to a firearm registry. With the new rule, ATF now requires FFLs to retain Form 4473s indefinitely and to send them to ATF upon ceasing operation. The change dovetails with anti-gun efforts to “modernize” the NTC in a manner that would make it easier for the agency to track retail gun purchases.
This has significant consequences for law-abiding gun owners. While the NTC and its records can be used to trace firearms from a crime scene to a retail purchase, the system can also be used in the reverse—to trace firearms from a manufacturer to a retail purchaser.
Called a forward trace, in 1994, ATF changed the legal classification of certain models of shotguns and used this method to track down the purchasers in an attempt to get them to register their lawfully purchased firearms as “destructive devices” under the National Firearms Act (NFA). With David Chipman calling for the AR-15s to be registered under the NFA, and President Biden and Vice President Kamala Harris calling for gun confiscation, it is easy to see how a more-comprehensive tracing regime could be employed to harass gun owners and facilitate confiscation.
Less than a month after announcing the frame or receiver rule, the Biden ATF took aim a popular subset of handguns. In June 2021, Biden’s ATF announced rule 2021R-08, “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces.’”
Federal law defines a handgun as a firearm designed to be capable of being fired by one hand. When equipped to an AR-15 platform, or other large format, handgun, a stabilizing brace assists a person’s ability to accurately fire the firearm with a single hand. These devices were initially designed to help disabled veterans regain the ability to use these firearms.
Under the proposed rule, nearly all configurations of firearms equipped with a stabilizing brace would be reclassified as short-barreled rifles subject to the NFA taxation and registration requirement. Those seeking to maintain possession of these firearms, that they lawfully built or purchased, would be required to register their property with the federal government or alter their firearm’s configuration.
Later in June 2021, the Biden-Harris administration targeted FFLs through a new “zero tolerance” policy. At the time, the White House explained, “ATF will seek to revoke the licenses of dealers the first time that they violate federal law” in relation to certain violations. Some of these violations could include simple paperwork errors, such as minor mistakes on a Form 4473. The new policy has led to speculation that the effort is aimed at reducing the number of gun dealers, thus making it harder for Americans to exercise their Second Amendment rights.
Electing a pro-gun Congress will help to protect gun owners in four distinct ways. First, a pro-gun Congress will put an end to Biden’s dreams of gun-ban legislation.
Second, Congress maintains the power of the purse. Power over federal agency funding is an important tool to ensure federal bureaucrats act in accordance with the law. Congress can defund enforcement of improper agency rulemakings and ensure that the ATF’s focus is where it belongs—on violent criminals.
Third, a pro-gun Congress can exercise proper oversight of the government agencies tasked with enforcing gun laws. Opposition party-led House and Senate Oversight Committees might even be able to get to the bottom of federal law enforcement’s bizarre treatment of the allegations of illegal gun possession surrounding Hunter Biden.
Fourth, as important as it is to empower our allies to play defense, voting isn’t all about protecting the status quo against a lawless presidential administration and a malicious Congress. Just as important in recent years has been how pro-gun senators have helped to create a pro-Second Amendment judiciary.
Think back to February 2016, when U.S. Supreme Court Justice Antonin Scalia unexpectedly passed away. President Obama nominated Garland to replace the author of the landmark District of Columbia v. Heller decision, which affirmed the Second Amendment protects the individual right to keep and bear arms. Given Garland’s recent conduct, there can be little doubt that the partisan hack would have used his seat on the bench to undermine constitutional rights.
Thankfully, American voters had granted the opposition party control of the U.S. Senate in 2014. Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Chairman Chuck Grassley (R-Iowa) ruled out confirming an Obama nominee prior to the 2016 election. With the Supreme Court on the ballot, the American people voted Donald Trump into the White House.
In the following four years, a pro-gun Senate majority helped President Trump to confirm three worthy Supreme Court justices and remake the lower federal courts with a raft of pro-Second Amendment judges.
Voting to elect that pro-gun Senate has paid real dividends for gun owners. On June 23, the Supreme Court issued its decision in New York State Rifle & Pistol Association v. Bruen. In reaffirming that the Second Amendment protects an individual right to keep and bears arms, the decision threw out New York’s 111-year-old discretionary carry-licensing regime—making Right-to-Carry the law of the land.
Moreover, Trump-appointed lower court judges have worked to interpret the Second Amendment and Supreme Court precedent faithfully. On Aug. 23, a Trump-appointed federal district court judge in Texas ruled that the right to bear arms outside the home for self-defense extends to young adults ages 18-20.
Given the dire stakes of this election, NRA members must make their voices heard on Nov. 8. Moreover, NRA members must work to ensure that like-minded family, friends and neighbors understand the threat an unchecked Biden administration poses to Second Amendment rights. A sufficient group of informed, motivated and voting gun owners can keep Biden and Garland in check for the next two years and lay the groundwork for a brighter future in 2024.