This week, Heritage legal fellow Amy Swearer, breaks down the Biden administration’s plans on gun control. She explains why instead of addressing the real underlying problems when it comes to gun violence, President Biden is pushing politically divisive measures that could seriously damage our right to keep and bear arms without making the nation any safer.
Michelle Cordero: From the Heritage Foundation, I'm Michelle Cordero and this is Heritage Explains. On the third anniversary of the tragic shooting at Marjory Stoneman Douglas High School in Parkland, Florida, President Joe Biden issued his administration's first significant push for new gun control measures.
Clip: President Biden is calling on Congress to pass what he's calling common sense gun reform. The President says he wants to ban assault weapons, high capacity magazines, and he wants to require background checks for all gun sales.
Cordero: And White House Press Secretary, Jen Psaki recently stated that Biden is eager to take on the NRA.
Jen Psaki: So I will say that the President addressing gun violence in the country and putting in place additional safety measures is something that the President has a personal commitment to and his history on this issue is evidence of that. He's obviously taken on the NRA twice and won. And he is happy and eager to do that in the future. Part of our engagement is working with groups to determine what the steps are that can be taken, but I don't have anything to preview for you at this point in terms of what the policy will look like or what form it will take.
Cordero: So it sounds like it's on. A Liberal President in Congress could move forward with their gun control wishlist, but heritage legal fellow Amy Swearer writes that as usual, instead of addressing the real underlying problems when it comes to gun violence, President Biden is pushing politically divisive measures that could seriously damage our right to keep and bear arms without making the nation any safer. Our explainer today is inspired by Swearer's op-ed. And when we return after this quick break, we will blow four factual holes in the administration's gun control agenda.
Cordero: Amy, thank you so much for joining us.
Amy Swearer: Thank you so much for having me.
Codero: So what type of gun control measures is the Biden administration seeking?
Swearer: Well, there's nothing particularly new in President Biden's latest message to Congress about gun control for anyone who's been paying attention. I mean, I think we had a pretty good idea of what type of measures his administration might push for. But we do have sort of his first real statement as President on these issues and that came last month on the third anniversary of the tragic school shooting at Marjory Stoneman Douglas High School in Parkland, Florida if you recall in 2018. I think the big takeaway from this message to Congress was four main thrusts of gun control measures that he was calling for.
Swearer: So the first was a ban on so-called assault weapons and a ban on high capacity magazines. Then you also saw him call for a mandate for background checks on all gun sales. And that was the term that he used, all gun sales. And then he also talked about eliminating immunity for gun manufacturers and I'm quoting here, "Who knowingly put weapons of war on our streets." So again, none of this is particularly new in the sense that no one has ever suggested these measures before, but it is his first time as President calling specifically on Congress to take on these issues.
Swearer: I think too that these were very vague calls. So none of these calls outlined specific measures, for example what should constitute a so-called assault weapon in any of these bills? Would these bans be merely future bans? Which is what Biden seemed to call for during his campaign. You can keep the guns you have now, but we're going to ban future sales or is it going to be a full-on Australian style confiscation measure? So, it is pretty vague there, but again, it's notable because it is his first real push as President to take on these issues.
Cordero: Yeah. And my guess is we're going to hear a lot more about this with such a Liberal Congress. Let's unpack some of these issues, you wrote about each one of them in a recent op-ed. Can you talk to me a little bit more about banning assault weapons? There are a lot of people out there that would tell you that there's no reason everyday citizens need assault weapons. That these are weapons of war. How would you refute that?
Swearer: Well, first of all, I'd start with the constitution. If the second amendment protects it, it doesn't matter what anybody's particular specific opinion is on whether or not I or you or anybody else needs it. If the second amendment protects it, it is protected. And I think there are obvious constitutional problems with whether it's completely banning future sales or confiscation efforts, we're talking about the nation's most popular semi-automatic rifles. Something like 15 to 20 million of them in circulation among civilians in this country. And when you start using phrases like weapons of war, these are not useful or meaningful constitutional tests. So when you look at what the Supreme Court has said in cases like District of Columbia v. Heller, McDonald v City of Chicago, when you even just look at the original meaning of the second amendment, there's nothing in there about, "Oh, well, if certain people think this is a weapon of war, then it's not covered." I think the Supreme Court's test, which is basically that is it a commonly used arm that's commonly used by law- abiding citizens for lawful purposes, then it's protected.
Swearer: And again along with that, you look at what types of firearms were clearly protected at the time of ratification. You have people bringing, whether it's single-shot pistols, muskets, your Brown Bess musket, your Kentucky long rifle. These were at the time weapons of war. That was the point is you had these firearms that people had, that had legitimate civilian functions. They could use them for hunting, for self-defense. But then that were also useful if they were called up to sort of community defense duties within the context of a militia. So again, this idea of weapons of war, it's just a term that they use to scare people. It doesn't have a real constitutional significance. So that's the first thing that I would say, right? You have this constitutional argument.
Swearer: But even beyond that, you look at these policy issues, if you could snap your fingers and all of a sudden overnight these 15 to 20 million firearms, these semi-automatic rifles just disappeared, would it make a difference? And the answer's no. And part of this is, again, there's no unusually dangerous about guns like the AR-15, and that has to do with how you even define assault weapons, right? So when you look at the defining features of assault weapons, it's not things like caliber, muzzle velocity, rate of fire, it's mostly cosmetic features. Things that actually make the gun safer, easier, and more comfortable to handle, collapsing stocks, pistol grips, those sorts of things. And even when you look at how often are these guns used in crime? These are actually the types of firearms that are least likely to be used against civilians in a criminal manner.
Swearer: Something like only 3% of gun-related homicides every year are committed by rifles of any kind. They're not really used in gun suicides, especially compared to things like handguns. They are far, far less dangerous if you're just looking merely at how criminals use guns. What is actually used in the vast majority of gun deaths and gun crimes, it's not these guns. So again, even if you get past these constitutional issues, is this even a policy that's going to make Americans meaningfully safer? And the answer is no. And frankly, it's not designed that way. It's designed as this political pushback against scary looking guns.
Cordero: Yeah. That 3% stat, that's a big one. And that brings me to the next point, which is about banning high capacity magazines. Would banning that, would that stop the loss of life in scenarios like Stoneman Douglas High School?
Swearer: The unfortunate reality is no, it wouldn't. Again, you start with the constitutional issues. I think you have very, very serious constitutional questions about banning these for the same reasons that you would so-called assault weapons. But when look at what even is a high capacity magazine? It's a very arbitrary definition to begin with. So most times, most of these laws in certain States will say 10 rounds, some States it's 12, some States it's 15, but there's no statistical reason for this that people really point to. It's just like, "Oh, that's a good round number." So you start with this arbitrary measure of, well, no one needs more than 10 rounds, just because 10 is, I guess, around number.
Swearer: But then when you start getting underneath to, again the real underlying data that we know about gun crimes and gun violence, I think so you mentioned mass shootings and I think that's a good place to start. Even though mass shootings are a very, very small percentage of gun deaths every year in this country, they are of course very visceral. I mean, they have massive impacts on society compared to just how small of an actual problem they are.
Swearer: But even when you look at mass public shootings, the vast majority of these shooters are already bringing with them more than one firearm. So you already have that complicating factor. And then you have to look at the context of what's happening in these mass shootings. So the average timeframe between when a person starts that shooting, and when there's an armed response that is going to meaningfully stop him is most often about six minutes. Sometimes it's actually a lot more than that. So you essentially have several minutes for this person to wreak havoc. And at that point, it doesn't matter. I mean, the impact of saying, "Okay, well now there are several seconds where they need to reload." The impact of that is effectively meaningless. If you just force them to use another weapon or to reload.
Swearer: Whereas if you flip that and you look at the context of how a law-abiding civilian might use a so-called high capacity magazine, it's in a situation where they are already immediately being confronted by crime. Someone has broken into their home and they are that first responder, where that several seconds, when they're outgunned, when they're outnumbered, when their life is on the line, those several seconds of reloading could be very, very important to saving lives. So, I mean, it's just astonishing to me that even if you look at this from just a cost benefit analysis, the benefit of possibly causing mass shooters to spend some extra seconds versus causing law abiding civilians in a self-defense context to spend those extra seconds, it's not even a question, especially when you look at the number of times that law abiding civilians defend themselves versus how often mass shootings happen.
Cordero: Amy, President Biden brought up mandatory background checks. Let's be really clear on this. What do they want to change? Don't we already do background checks?
Swearer: The answer is yes and no. Statistically, I think most gun sales and transfers in this country do go through background checks. So if you are buying a gun from a store, from any sort of brick and mortar place, from anyone who is what the ATF calls engaged in the business of dealing firearms, your typical gun seller, whether it's at a gun show, a store over the internet, federal law requires a background check. And it also requires a background check if you're just an individual person selling across State lines. There is this small group of sales that do not require background checks. So right now, if you think of things like ARMSLIST, so these individual sales to individuals within the same State, so if I have a gun that I just want to get rid of and advertise it on ARMSLIST, I don't necessarily have to go through a background check at least under federal law.
Swearer: And part of the reason for this is that only those businesses, those federally licensed businesses have access to the national instant criminal background check system. So if I, as not FFL want to sell a gun, I have to go pay an FFL to do that, I can't just call up the FBI and have them run a background check. So on the one hand, I think it makes sense to want to try to ensure that these individual sales are checked in a more substantial way. I don't think that's a bad thing, especially these private commercial sales between strangers.
Swearer: But there are two important things to keep in mind. So the first is that even if this was a hundred percent successful, it's a very low reward endeavor. So we know that statistically, this is not how most would be criminals acquire firearms. And we also know that even if it were, the same people who are already selling to people they know are criminals are going to continue doing so without background checks even if you now say you have to conduct a background check. And second, I said Biden's recent call called for background checks on all sales but the problem is most calls for universal background checks are much broader than that. It would impose these significant burdens on sort of low risk, temporary transfers.
Swearer: Effectively, anytime someone other than you wants to touch your gun for whatever limited period of time, you have to do a background check. And you're more likely to actually make felons of law abiding citizens than to stop any criminal from getting guns that way. Right and so again, this is one of those areas where I think work can be done, especially if you combine private sale background checks with reasonable exemptions for concealed carry permit holders, people who have gun permits in States that require gun permits, where by virtue of having that permit, you clearly pass a background check. But it's not a high reward scenario. So because it's low reward, you want to make sure that it's also low burden and low risk for law abiding citizens.
Cordero: Okay. And then the last measure you mentioned is eliminating immunity for gun manufacturers. And I say it like this because I'm not really sure what this means exactly.
Swearer: Yeah, so most of the time when people reference eliminating immunity for gun manufacturers, they're referring to The Protection of Lawful Commerce in Arms Act, which I believe was passed in 2005. And so let's talk about this act because I think there's a lot of mischaracterizations of this.
Cordero: Yeah. Because to me just I'm still what does that mean? What is that act?
Swearer: Right. So what this law does is it, and it is unique to the gun industry, but the law protects gun manufacturers, sellers, distributors from lawsuits trying to claim that they're liable for third party's criminally misusing their guns. So essentially, if the gun store sold a gun in compliance with federal law to someone, and for whatever reason that person or someone else, somewhere down the line uses that gun to harm someone else, this law protects the gun seller from being sued for that, as you provided this person with a dangerous weapon. It does not mean that they're not liable for things like selling defective products. If the gun explodes in your hands, that's bad, you can sue them. If they fail to follow federal regulations about sales and safety and doing background checks, if they falsely advertise and any sort of tort claims, you can absolutely still sue them for that.
Swearer: But the point of this, and the reason that Congress granted this type of immunity was that prior to it, gun control advocates were just barraging the gun industry with these types of frivolous lawsuits about third party criminal misuse. Really just in hopes of miring these businesses in expensive litigation to essentially say, "Well, we can't kneecap the gun industry through certain types of litigation. So we're going to choke out a lawful industry by just tying them up in court and making it too expensive for them to continue selling guns." And so that's problematic. And so when they talk about repealing this, what they're actually saying is we want to make it so that the gun control groups can try to kneecap this lawful industry again. It's not about promoting public safety. It's not about any attempts to actually reduce gun violence. It's about choking out the gun industry.
Cordero: In conclusion, does anything in the Biden administration that they're proposing, does it make anyone safer? And if not, what should we be doing instead?
Swearer: The short answer is no, even if 100% successful, even if we just ignore constitutional problems with them. None of these proposals, especially when compared to other things we could be doing, they're not going to make Americans safer. What it's going to do is create a very politically divisive atmosphere where, to be even marginally successful, you'd have to put so much political energy and so much time and money and this federal effort to make them marginally successful. But I think if instead you took that time and energy and effort and put it into things that are addressing the underlying problems that produce gun violence, you're going to get a much safer nation.
Swearer: If you put it into, for example, investing in the nation's mental health infrastructure. So two thirds of gun deaths every year are suicides. Two thirds, an incredible number of deaths that are mental health related. So investing in that and investing in targeted time, limited interventions for people who are a danger to themselves or others. Training communities, training local officials to take threats of violence and mental health seriously. Using proven anti-gang violence programs, programs like unfortunately ones that the Virginia Democrats recently declined to fund in the State of Virginia. Investing in education, investing in communities to create stable families, to create economic opportunities that lead people way from drug and gang related violence and that promote human flourishing. Those types of efforts, one, again, it promotes human flourishing in a lot of other ways, but it's also related to reductions in gun violence, in gun suicides and gun homicides. So if we're going to make this massive concerted effort, let's put it where it matters. Let's put it where it's going to do the most good instead of attacking law- abiding citizens.
Cordero: Amy, thank you so much for all your research on this topic, and I'm sure this isn't the first we'll be speaking to you about this issue.
Swearer: Thank you for having me.
Cordero: And that's it for this week's episode of Heritage Explains. The link to Amy's op-ed is in our show notes. If there's a topic you want to hear about or some feedback you want to leave us, you can reach me at firstname.lastname@example.org. Also, we would love if you could leave us a rating and review on Apple podcasts or wherever you're listening right now. Thanks again. I'm so grateful to be able to bring you these explainers every week. And I hope you're well, we'll see you soon.