Anti-gun groups press Biden to issue executive action on "assault weapons"

AP Photo/Patrick Semansky

We already know that Joe Biden is going to repeat his call for Congress to ban modern sporting rifles during next week’s State of the Union address. The real question is whether he’ll trot out his stale talking points about deer in Kevlar vests and the falsehood that you couldn’t own cannons when the Second Amendment was ratified.

We also know that a divided Congress is unlikely to implement a legislative gun ban, which is why a coalition of anti-gun groups is demanding that Biden direct the ATF to pursue a gun ban via regulation instead.

In a new letter to Biden, the groups say its time for the ATF to take a look at imported firearms to see if they pass the “sporting purposes” test created by the Gun Control Act of 1998; a move they hope will lead to the ban on the importation of many modern sporting rifles produced overseas.

And though the president doesn’t appear to have the votes for an assault weapons ban in Congress, the groups argue that Biden has tools at his disposal to further limit the proliferation of these guns in the U.S., including by fully enforcing the importation ban of foreign-made assault weapons that do not have a “sporting purpose.” As Giffords notes in its memo, the ATF, which oversees the importation of guns in the U.S., “has not conducted a comprehensive review of semi-automatic assault rifles and handguns under the sporting purposes test” since the Clinton administration.

Giffords and the other gun control groups don’t want the ATF to merely conduct a review of currently imported firearms, but to “issue new criteria” to enforce the sporting purposes test. In doing so, however, they could be opening up a Pandora’s Box that leads to the demise of the “sporting purposes” test altogether.

In HellerMcDonald, and Bruen, the Supreme Court has made it clear that the fundamental purpose of the right to keep and bear arms is self-defense, not sport. Our ability to hunt, compete, or even recreate with a firearm is ancillary to our ability to use a gun to protect human life. Does the GCA’s “sporting purposes” test infringe on that right to keep and bear arms by prohibiting the importation of arms that are identical in nature to some of the most commonly-sold firearms in the United States, or does it merely impose a regulation on gun companies without directly impacting would-be gun owners?

Most of the litigation taking on the ATF’s rules banning bump stocks, re-labeling pistols with stabilizing braces “short-barreled rifles”, and declaring unfinished frames and receives to be “firearms” have avoided a direct challenge to the constitutionality of the Gun Control Act, primarily arguing instead that ATF’s rules violate the Administrative Procedures Act and create new law instead of merely interpreting existing regulations. However, if the Biden administration follows the demands of the gun control lobby and orders the ATF to review existing imports and establish new criteria for the “sporting purposes” test, that would provide a golden opportunity to challenge the legality of the test itself.

There are risks to that strategy for both sides, of course, and I’m not convinced that Biden will acquiesce to these demands. The gun control lobby has also been quietly advocating for the administration to re-classify large numbers of semi-automatic firearms (including many common handguns) as machine guns; an even broader proposal than what they’re publicly calling for in their demand letter to the White House. As I’ve said before, that would be the nuclear option for Biden, and could not only lead to the Supreme Court weighing in on bans on modern sporting rifles, but the underlying statutes being used to implement the unconstitutional actions.

For gun owners, the concern is that the Court might not be ready or willing to nuke the GCA, either in whole or in part, and could even end up upholding the gun grab on the flimsiest of legal theories.

It’s not up to Second Amendment advocates to chart Joe Biden’s course on gun control over the next two years, and frankly, given that the gun control lobby itself hasn’t had much luck convincing him on things like establishing a White House czar on “gun violence”, I don’t know that it’s up to groups like Everytown or Giffords either. What I do know is that Biden’s anti-gun ideology isn’t just for show or a position he trots out for the press when circumstances dictate. He’s a true believer in banning our way to safety at the expense of fundamental civil rights, and as he sinks further into lame-duck status an administrative gun grab might start to look more attractive. White House press secretary Karine Jean-Pierre said last week that the administration will “continue to pursue executive actions” in the future, and though she declined to offer any specifics I think we know that there are several options on the table… including the nuclear one.