The second amendment may be at risk with the advent of the incoming administration. In a statement found on his campaign website, he makes his plans clear. On Friday, the NRA posted a tweet that showed Biden saying he will "ban magazines that can hold multiple bullets in them" and that doing so does not violate the second amendment. His website states that his administration will "pursue constitutional, common-sense gun safety policies."
The plan addresses a litany of issues by closing loopholes, promoting new gun safety legislation, and seeks to reverse multiple policies and regulations that President Trump put in place during his administration. Many of his cabinet picks are also active proponents of gun control.
Some of his legislation and policy will be based on the lobbying that Gabby Giffords has led on gun control. Former Republican Arizona Congresswoman Gabby Giffords has been an avid gun control activist since she suffered a brain injury in an assassination attempt while speaking with constituents in a parking lot in Tucson in January of 2011. She switched to the Democrat party in 2000.
Highlights of the plan are:
- Ending the sale of firearms, ammunition, kits on the internet.
- Indicates that he will take executive actions to close loopholes, "including narrowing the so-called “gun show loophole,” increasing the number of records in the background check system, and expanding funding for mental health services."
- Seeks to ban the manufacture and sale of assault weapons and high capacity magazines.
- Regulates the use of 3-D printers for gun production.
- Government buyback program, giving individuals the option to sell their weapons or register them under the National Firearms Act.
- Limit stockpiling of weapons.
- Enact universal background check legislation.
- 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."
During her Presidential campaign run, Kamala Harris said that she would give Congress 100 days "to get their act together and have the courage to pass reasonable gun safety laws, and if they fail to do it, then I will take executive action." Her now cached campaign statement on gun violence echoes the policies supported by Biden. She also vows to "revoke the licenses of gun manufacturers and dealers that break the law and take the most egregious offenders to court—regardless of whether they’re protected by the Protection of Commerce in Arms Act (PLCAA)."
Notably, Biden also announced he would nominate U.S. Court of Appeals for the District of Columbia Circuit Judge Merrick Garland for Attorney General in a press conference on Jan. 7. Garland served in the Justice Department under President Carter, Bush 41, and Clinton administrations.
Garland has voted against the Second Amendment at least four times. As recently as 2012, he voted to allow prosecution of individuals "without the prosecutor having to prove the accused knew the weapon was automatic, known as a showing of mens rea or a guilty mind, a requirement common in criminal law." The opinion, in that case, filed by Circuit Judge Janice Rogers Brown, brings home the gravity of Garland's dissent:
The debate over mens rea is not some philosophical or academic exercise. It has major real-world consequences for criminal defendants. And it takes on added significance in an era of often lengthy mandatory minimum sentences. In this statute, dispensing with mens rea means an extra 20 years of mandatory imprisonment for the defendant, tripling the mandatory minimum sentence from 10 years to 30 years. And the 30-year sentence must be served consecutively to (that is, in addition to) the sentence for the underlying robbery. That is an extraordinarily harsh result for a fact the defendant did not know.
Judge Brett Kavanaugh wrote the dissenting opinion for that case in which he wrote, "The presumption of a mens rea requirement should have applied to each element of the offense, and the automatic character of the gun was an element of the crime at issue."
The fundamental right to keep and bear arms is a cherished constitutional liberty by many. Countless gun laws and regulations are currently on the books. However, the debate is a more nuanced slippery slope than most people are realize. There is great potential for leaders and judges to take liberties with laws and regulations. The risk is that leaders and courts will deliver subjectively prejudicial judgments of an individual's actions that result unjustly in a pejoratively, life-altering course.
