President Biden has announced plans for about half a dozen executive actions. Among them, he wants tighter regulations on buyers of ghost guns, or homemade firearms assembled from parts kits. He wants these treated under the Gun Control Act, and include a background check.
Other plans include a proposed rule regulating pistol-stabilizing braces. Biden said this was used in the Boulder, Colorado shooting last month, which left 10 people dead. He also urges states to adopt "Red Flag Laws," and will publish model legislation in the next two months. Red Flag Laws allow someone to petition a court to have weapons confiscated from someone who could be a danger to themselves or others.
Repeatedly throughout Biden's announcement, he said these measures do not interfere with second amendment rights.
Does it? We don't know yet. That's according to Devin Schindler, a distinguished emeritus professor of law and constitutional law expert. He referred to two supreme court cases, District of Columbia v. Heller and McDonald v. City of Chicago. Schindler said in these cases, the Supreme Court ruled individuals have a fundamental constitutional right to possess common firearms.
"The Supreme Court, in opinion by Justice Scalia, who is, you know, a fan of gun rights, said we're not saying that states in the federal government cannot issue reasonable gun restrictions on things like machine guns or preventing felons possessing firearms," said Schindler, "We're not saying that. We're saying very narrow ruling that individuals have a right to possess common firearms in their home for purposes of self defense."
Schindler said the unknown right now is if ghost kits or these stabilizers fall under common firearms. That would be up to the Supreme Court to decide.
However, Biden also made a point in the announcement amendments are not absolute.
"You can’t yell fire in a crowded movie theater and call it freedom of speech," said Biden, "From the very beginning, you couldn’t own any weapon you wanted to own. From the beginning of the second amendment existed, certain people were not allowed to have weapons. So the idea is just bizarre to suggest some of the things we are recommending are contrary to the constitution."
Schindler said a number of similar cases have already worked their way through lower courts, but the Supreme Court has refused to take them on. He believes the Court is waiting until the dust settles. However, he said Red Flag Laws, if adopted by the federal government, and ghost kits could easily make its way to the highest court.
"The Court has made clear that certain kinds of reasonable restrictions will be upheld," said Schindler, "We don't know the exact line. But I thought President Biden made a pretty spirited defense for the idea of, why do folks need 100 magazine bullet chamber for home defense? There's something to that. Red Flag Laws. The Constitution also says that the government can deprive you of life, liberty and property if they give you due process. Well, Red Flag Laws require that there be a court hearing and due process. So we have to see exactly what comes out of this before we can make any definitive determinations or predictions."
In his announcement today, President Biden also called on Congress, urging them to act on gun control. He highlighted measures such as closing background check loopholes and passing the Violence Against Women act.
"So, President Biden is absolutely correct that the Supreme Court has ruled that the Second Amendment, like the First Amendment, is not absolute," said Schindler, '"Certain restrictions are still allowed under our Constitution. Problem is, we don't know exactly what those restrictions are yet."
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