I’m still holding out hope that Donald Trump will get re-elected, but given the likelihood of a Joe Biden presidency (however legitimate the American people view it), it’s time to start thinking about the most likely anti-gun moves his potential administration might make.
Let’s start with the fact that the Democratic advantage in the House of Representatives is going to be cut down considerably, as Republican analyst Adrian Gray pointed out on Twitter earlier today.
416 House races appear decided
Republicans 204 (+10)
19 Seats remain, GOP lead in 10
To win 218 (and House majority), GOP would need to win all the districts they are leading in, plus:
— Adrian Gray (@adrian_gray) November 5, 2020
Gray says he thinks Republicans will end up with somewhere between 209 and 214 seats, giving Democrats somewhere between 226 and 221 votes. That’s a majority, but it’s a slim one, and there is already a lot of infighting within the caucus between the out-and-proud democratic socialists like AOC and Rashida Tlaib and more moderate members like Abigail Spanberger of Virginia, who declared victory in Virginia’s 7th Congressional District yesterday (though her opponent, Republican Nick Freitas, has not conceded the closely contested race).
Washington Post congressional correspondent Erica Werner detailed a Democratic caucus conference call that took place today as it was happening, and Spanberger had plenty to say about the far-left lurch of the party.
If we run this race again we will get fucking torn apart again in 2022, Spanberger says
— Erica Werner (@ericawerner) November 5, 2020
Go read the whole thread to get a full sense of the discord within the caucus right now. I bring this up because Spanberger and other Democrats who ran in swing districts on “common sense gun safety laws” like universal background checks may be far less willing to vote in favor of Biden’s gun ban and so-called buyback of semi-automatic rifles and ammunition magazines, particularly if there’s no chance of the bill getting through the Senate.
At the moment, that looks likely. We’re probably headed to two runoff elections in Georgia, and races have yet to be called in North Carolin and Alaska, but it looks like the GOP will have at least 50 seats in the next Senate. Democrats would have to win both seats in Georgia in order for the Senate to get to 50-50, which would allow Kamala Harris to cast tie-breaking votes in her role as president of the Senate. Would Senate Democrats use a tie-breaking vote to change the Senate rules and get rid of cloture, allowing legislation to pass with a bare minimum 51 votes? Maybe, but they’d be handing Republicans a perfect issue to run on in 2022, and Democrats like Spanberger know it.
For that reason, I think that the most likely place where the Biden administration would begin to enact his gun control agenda would be through the executive branch.
In his gun control platform on his campaign website, Biden outlined several steps that he would take through executive action, beginning with the reinstatement of an Obama-era rule stripping some Social Security recipients of their Second Amendment rights.
- 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. In 2016, the Obama-Biden Administration finalized a rule to make sure the Social Security Administration (SSA) sends to the background check system records that it holds of individuals who are prohibited from purchasing or possessing firearms because they have been adjudicated by the SSA as unable to manage their affairs for mental reasons. But one of the first actions Donald Trump took as president was to reverse this rule. President Biden will enact legislation to codify this policy.
Federal law states that if someone has been adjudicated as mentally defective, they lose their right to keep and bear arms. What Biden’s plan would do is strip people of their rights, not based on any sort of determination by a medical professional, but by a blanket policy that requires the word “adjudicated” to be completely redefined.
The Social Security Adminstration’s website explains that representative payees are appointed “because we have decided that you need help in managing your money.” Nothing in there about being able to own a gun, or drive a car, or live unassisted, or anything else. We have a process in this country where those who are severely mentally ill can lose their right to own a gun, but Biden wants to take a short cut and use the administrative powers of the Social Security Administration to strip people of their rights without ever having been adjudicated as a “mental defective”.
Millions more gun owners will be impacted by Biden’s push to weaponize the ATF and the DOJ as anti-gun government agencies. Again, from Biden’s campaign website:
Biden will direct his Attorney General to deliver to him within his first 100 days a set of recommendations for restructuring the ATF and related Justice Department agencies to most effectively enforce our gun laws. Biden will then work to secure sufficient funds for the Justice Department to effectively enforce our existing gun laws, increase the frequency of inspections of firearms dealers, and repeal riders that get in the way of that work.
We’ve already seen the ATF make some troubling determinations regarding imported AR and AK-style pistols, as well as going after the makers of the Honey Badger pistol for its brace, which the agency claims turns the pistol into a short barreled rifle that must be registered under the NFA. In a Biden administration intent on cracking down on legal gun ownership but unable to immediately pass their gun ban and compensate confiscation plan, the ATF will almost certainly serve as his springboard to impose new restrictions on existing gun owners through the regulatory process.
The ATF could apply their new definition of “handgun” to all firearms, instead of those that are imported into the country (as is currently the case), which could turn millions of legally-possessed AR pistols into “any other weapon” items that are illegal to possess without registering them under the National Firearms Act. Biden wouldn’t even have to offer a “buyback” of those guns. Without a single bill, the ATF could redefine millions of lawfully possessed firearms into illegally possessed guns that could put you in prison for years.
Another area where Biden is likely to quickly direct the ATF to take action is on unfinished receivers. Biden’s campaign website pledges that the candidate will “stop the proliferation of these so-called ‘ghost guns”’by passing legislation requiring that purchasers of gun kits or 3D printing code pass a federal background check,” which is a ridiculous concept in and of itself but also unlikely to be a top legislative priority when he can use the ATF to go after “ghost guns” without getting Congress involved.
Gun control groups have been pushing for the ATF to reinterpret their rules and declare the uncompleted gun parts to be firearms as defined by the GCA, and California Attorney General Xavier Becerra recently sued the Trump administration over the issue.
ATF maintains that the unfinished pistol frames and rifle receivers used to make untraceable “ghost guns” are not subject to the same regulations as other firearms. The lawsuit asks the U.S. District Court for the Northern District of California to vacate these determinations and direct ATF to classify so-called “80 percent” frames and receivers as firearms subject to federal firearms statutes and regulations.
If Biden’s in the White House, look for the ATF to start going after 80% frames and receivers, almost from day one.
There’ll be more regulation and administrative rules targeting legal gun owners, but these seem the most likely starting point for a potential Biden administration. Thankfully, the courts have not yet been backed, and gun owners may be able to find relief from the most egregious of anti-gun actions. Still, elections have consequences, and even if we’re spared the worst of them (at least for now), Joe Biden is going to do everything he can to remind gun owners that he’s no friend to the Second Amendment, no matter how much he may claim to support the “limited” right.