Biden Continues to Break Promises About Gun Violence; Court Ruling Undercuts One Gun Executive Action Plan, Another Remains
President Joe Biden Unveils His Plans To Reduce Gun Violence
WASHINGTON, D.C. (April 8, 2021) - President Joe Biden unveiled his long delayed plans to take executive actions aimed at reducing gun violence, but in doing so he continues to break his promises regarding this issue, called for changes very likely to be overturned by the courts, and failed to include one which would have a much bigger impact and save more lives, says public interest law professor John Banzhaf.
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The professor also notes that a recent poll shows that although Biden enjoys strong public support on many key issues, 57% of Americans disapprove of him when it comes to gun violence, with just over 40% indicating approval.
This may be because he has repeatedly broken his promises on this important issue, suggests Banzhaf, who notes that a recent high court decision may stymie some of his plans to proceed by executive action, thus making it even more compelling that he act without further delay in taking a different executive action related to firearms control.
Biden Broke His Campaign Promise
Banzhaf notes that Biden 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. He never did and, perhaps more seriously, never explained why he broke this promise, and to this day has not sent such a bill.
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. Again, he failed to explain to the public why this life-and-death issue wasn't addressed, even in part, by the many executive actions which he did find time to take.
More recently, Biden 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.
Federal Firearms Regulators Meet The Gun Industry's Representatives
In an apparent effort to move forward on at least one less serious gun problem, federal firearms regulators met recently with representatives of the gun industry on Friday to see what could be done about ghost guns; untraceable firearms without serial numbers made from parts bought online, or even created in homes using readily available 3D printers.
The ideas was to expand the statutory definition of what counts as a "firearm," an action which could be taken without the need for congressional action, and which would arguably subject such ghost guns to the same regulations as conventional handguns and other firearms.
But, notes Banzhaf, a recent decision by the 8th Circuit Court of Appeals may limit the ability of the Biden administration to take this most important executive gun control action. So the most important part of the actions Biden disclosed today may be largely for show, since it is likely to be tied up in court proceedings, and probably eventually overturned, while many innocent people continue to be shot.
Example Of Gun Owners of America v. Garland
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 banning "bump stocks" - attachments which permit rifles to be fired rapidly somewhat like an automatic weapon - went too far, and ruling that agencies will be given much less judicial leeway than in the past in re-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.
So this proposal to reclassify gun parts, or possibly even instructions for 3D printers to create these parts, is likely to run afoul of this new court precedent, since such a broad expansion of a well understood term ("firearm"), and its drastic consequences and expansion of federal regulatory power, would seem to be far more objectionable, both legally and by the gun industry, than the more modest effort to classify bump stocks as machine guns.
Thus the most effective executive gun violence action Biden can take now, and which arguably he should take quickly to deal with these repeated failures and broken promises, 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.
Acceptance Of 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. July 4, 2021), he would put enormous pressure on individual states to adopt the types of measures he himself 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 in federal grants 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 certain minimum standards and requirements, would put very strong pressure on individual states to take effective actions aimed at reducing gun violence, since few states would want to risk losing out on vital law enforcement grants, not only for themselves as states, but also for their cities, counties, towns, and even PBAs and other nonprofit organizations.
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., to protect the environment, not to discriminate, 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.