8th Circuit Imperils Biden on Executive Gun Actions

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8th Circuit Imperils Biden on Executive Gun Actions; Some Endangered, But A Very Effective One Seems Viable

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8th Circuit's Decision May Limit The Ability Of The Biden Administration To Take Executive Gun Actions

WASHINGTON, D.C. (March 26, 2021) - A decision yesterday by the 8th Circuit may limit the ability of the Biden administration to take executive actions designed to reduce gun violence by regulating firearms, a major problem since getting new federal gun laws through the Senate seems unlikely, notes public interest law professor John Banzhaf.

In Gun Owners of America v. Garland, the federal appeals court invalidated the Trump administration's modest efforts at gun control; holding that a rule by the ATF, an executive branch agency, banning "bump stocks" - attachments which permit rifles to be fired rapidly like an automatic weapon - went too far, and mandating that agencies will be given less leeway than in the past in interpreting statutes to achieve various goals.

In this case, the administration's attempt to classify bump stocks as machine guns, so the agency could regulate these devices, went too far, and the agency's interpretation was held to be no longer entitled to the traditional deference accorded decisions by the executive branch, says Banzhaf, who teaches the laws governing federal agencies.

While the impact of this ruling on other possible Biden gun control options (e.g., regulating "ghost guns") solely by executive actions - those which he can take without the need for congressional approval - is unclear, it might be seen by gun enthusiasts as a shot across Biden's bow, and encourage court challenges, with the resulting litigation delays, and ultimate appeal to a Supreme Court which many believe will be more gun friendly than in the past.

Biden's Broken Promises

Biden is under tremendous public pressure to take some actions very soon about firearms; not only by the public outrage about two recent mass murders with guns, but also because he has broken one firearm promise, and appears about to break another.

He broke his campaign promise to send a bill to Congress, on his first day in office, repealing liability protections for gun manufacturers and closing background-check loopholes. Then, to add insult to injury, he engaged in a wide variety of executive actions in the days immediately after being sworn in, but none of them related directly or even directly to firearms and shooting deaths.

Biden recently promised, in response to the two mass shootings, to "use all the resources at my disposal to keep the American people safe" - a promise many interpreted as agreeing to take prompt executive actions since effective gun control measures appear unlikely to get legislative approval.

But when he failed to mention any such firearms measures at yesterday's press conference, many may feel that he has broken another promise to take swift action to save lives from senseless shootings.

Thus the most effective executive action Biden can take now would be to provide a powerful incentive for individual states to adopt their own strong gun control laws - e.g. limits on assault weapons and large capacity magazines, more and better background checks, red flag laws, etc. - using a well established and generally accepted technique clearly within his executive powers and not subject to court challenge, argues Prof. Banzhaf.

Preference For Federal Grant Applications

If the President were to simply announce that federal grant applications related to crime prevention and law enforcement will be accepted - or at least given preference - only from states, and entities within states, which have comprehensive gun control laws in place by a stated date (e.g. May 1, 2021), he would put enormous pressure on states to adopt the types of measures he has publicly proposed, and which the public overwhelmingly supports, but which the U.S. Senate is apparently unlikely to adopt.

After all, says Banzhaf, it makes little sense to give tens of millions of taxpayers' dollar for fighting gun violence to states which refuse to adopt minimal gun control laws to protect their own citizens.

Requiring or even strongly pressuring states which want federal grants, to have in place gun control measures which meet minimum standards and requirements, would put very strong pressure on individual states to take effective executive actions aimed at reducing gun violence, since few states would want to risk losing out on vital law enforcement grants, not only for themselves, but also for their cities, counties, towns, and even PBAs and other nonprofit organizations.

Imposing Conditions To Recieve Grants

Since government grants and the conditions under which they are to be awarded are largely discretionary, such directives from the President would be perfectly legal - unlike any executive order attempting to directly impose federal restrictions related to guns - e.g., bans on assault weapons and/or large capacity magazines - which would be subject to legal challenge.

Indeed, imposing conditions to receive federal grants (e.g., not to discriminate, to protect the environment, etc.) are commonplace, generally accepted, and have been used successfully and very effectively by numerous administrations for many years.

Fortunately, the Congressional Research Service agrees, and has spelled out the legal basis for imposing such conditions in its "The Federal Government's Authority to Impose Conditions on Grant Funds."

So a president who has already broken his pledge to send a bill to Congress on his first day in office repealing liability protections for gun manufacturers and closing background-check loopholes, and who has just promised to "use all the resources at my disposal to keep the American people safe," should consider what is probably the most effective executive action he can take now to save American lives from further gun violence, argues Banzhaf.