100 Days Until Banned ARs

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For all freedom-loving Americans, the past few days have been a roller coaster.  Although not all hope is lost, it appears that Biden will soon be declared the 46th President of the United States.  Given the platform on which he ran, many of us are concerned that he will encourage another shut down, sympathize with the facilitators of domestic unrest, and pander to international bad actors.  But at least we have our ARs, right?  Maybe not for long.

It is no secret that Biden has long planned to take swift and aggressive action to ban ARs.  He committed during his campaign to “A Plan to End Our Gun Violence Epidemic,” which called for the following:

  • “Ban the manufacture and sale of assault weapons”; 
  • “Regulate the possession of existing assault weapons under the National Firearms Act [NFA]”; and
  • “Buy back the assault weapons” already possessed.1

Harris, too, campaigned on gun control, stating that she would “give Congress 100 days to get their act together” to pass gun control legislation, and that if they couldn’t get the job done, she would “take executive action.”2

So, here we are, staring at a Biden/Harris presidency, and the real possibility of an AR ban in short order.  What would a ban cover, you might ask?  Will it get enacted?  Will it survive legal challenges?  Are they really going to force a buy back?  The answers might surprise you.

What would an AR ban look like?

“Surely, they can’t just outlaw ARs, could they?”

Oh yes, they can!

They have before, and they will again.  Or at least they’ll try.

It might surprise you to learn that there actually was a ban in effect for 10 years between 1994 and 2004—called the “Public Safety and Recreational Firearms Use Protection Act,” otherwise known as theAssault Weapons Ban of 1994” (the “Ban”).  The Ban made it illegal to manufacture, possess, or transfer “semi-automatic assault weapons,” which were defined to include semi-automatic rifles, pistols, and shotguns with certain features. 

For rifles specifically, the Ban  defined “semi-automatic assault weapons” to include semi-automatic rifles capable of accepting a detachable magazine that also featured two or more of the following:  a (1) folding or telescoping stock; (2) pistol grip; (3) bayonet mount; (4) flash suppressor or a threaded barrel designed to accept one; or (5) grenade launcher.3 Since every AR necessarily includes stock and a grip, this banned most ARs.  As a silver lining, it at least grandfathered in the possession and sale of firearms legally possessed on or before its enactment.4

Manufacturers were savvy, though.  In response to the Ban, several replaced the magazine release on their weapons with a bullet button.  Because the bullet button required the operator to use a tool to release the magazine, it made the firearm not “capable of accepting a detachable magazine.” In other words, not banned.  This led to strong left-wing criticism that the feature-based test created an unintended loophole.  During his campaign, Biden echoed this criticism, stating explicitly that “this time . . . the ban on assault weapons will be designed to prevent manufacturers from circumventing the law by making minor changes that don’t limit the weapon’s lethality.”

What would a modern AR-ban look like, then?  Were you aware that, just last year, the House introduced new AR ban legislation?  Indeed, it did.  Introduced in March 2019, the bill was titled the “Assault Weapons Ban of 2019” (the “Bill”).6  The Bill, just like the Ban before it, defined “semiautomatic assault weapons” to include semi-automatic rifles with certain features, such as a stock and grip.  The bill, however, also went far beyond the original Ban by defining “semiautomatic assault weapons” to also include:

  • “all AR types” including the AR-10 and AR-15;
  • the receiver of the AR-10 and AR-15; and
  • “any combination of parts from which [an AR-10 or AR-15] could be assembled.”7 

 “All AR types.”  “Any combination of parts.”  Are you scared yet? 

Even though the Bill, just like the Ban, would grandfather in the possession and sale of firearms legally possessed on or before its passage, it would completely halt the future manufacture of any AR-type weapon.  It would also make it risky business for any individual to purchase the component parts of an AR (trigger, BCG, barrel, etc.)—even just to maintain their pre-owned weapons—because the possession of all of the component parts together, even if disassembled, would be considered the possession of a “semiautomatic assault weapon” under the Bill.   

Given the broad stroke of the bill, you might wonder how anything like it ever possibly could get enacted.

Does an AR ban have a chance at passing?

 “There are too many ARs in circulation, they won’t be able to do it!” 

Well, they tried in 2019!

Of course, in 2019, with a Republican-controlled Senate and a Republican president, the Bill was a non-starter.  As of the time of this writing, however, it appears that Biden will win the Presidency, the Democrats will have retained their majority in the House, and they may also be able to secure a majority or equal split in the Senate. Just four seats are yet to be called in the Senate, with the two closest being from Georgia. If Democrats in fact are able to obtain a majority or maintain an equal split in the Senate, passing the Bill or a close version to it likely will not face much resistance (in the case of a split vote, Harris as Vice President would be the tie breaker). If the Republicans are able to win the Senate, however, an AR ban, particularly one as expansive as the Bill, would likely die there.

Let’s all pray for Georgia. But even if Republicans win the majority, you might wonder:

Could Biden simply bypass Congress and issue an executive order banning ARs?

That’s the million dollar question.

During their campaigns, both Biden and Harris were careful not to hint one way or the other.  Both stated only that they would use executive authority to ban the importation of ARs—probably because they know that a sweeping executive order with criminal enforcement on the domestic manufacture and possession of ARs would not be legally tenable.

But let’s say that Biden were to take the leap and issue such an expansive executive order, what then? There is no doubt that it would immediately be challenged as an illegal order that exceeds the scope of the President’s authority.  There then would be legal argument over whether the order should be stayed (i.e., put on hold) until it made its way through the courts.   The legality of the order (not the merits of the ban) would be litigated.  If the executive order were found to be unlawful, the law would be tossed.  But if the order were determined to be lawful, the law would take effect. 

And if the law were to take effect, it could then be challenged on the merits.  Which leads to the next question, how would a ban fare in the face of litigation?

Will it survive constitutional challenges?

 “What about the SECOND AMENDMENT?!”  “What about the Supreme Court?” 

Ah, yes!  What about them? 

It might seem unbelievable, but the 1994 Ban was not challenged as unconstitutional under the Second Amendment.  Why not?  After all, it was challenged as unconstitutional under several other provisions (though all those challenges failed).  At the time the Ban was in effect, the Second Amendment had not firmly been recognized as creating an individual right to bear arms unconnected with service in a militia.  All that changed in 2008 when the Supreme Court finally recognized that right in its decision in District of Columbia v. Heller, 554 U.S. 570 (2008). 

No doubt, any AR ban passed today would be challenged under the Second Amendment, as well as Heller and its progeny.  And thanks to Trump, for the first time in about 50 years, conservatives are in the majority on the Supreme Court.  Moreover, new Justice Amy Coney Barrett has a strong track record on Second Amendment.  Just take a look at her dissenting opinion in Kanter v. Barr, No. 18-1478 (7th Cir. Mar. 15, 2019), in which she adopted the novel view that the government needed to show that a felon was dangerous by nature of his specific character or crime before disarming him.  

But would a challenge to an AR ban even make it to the Supreme Court?  Not necessarily.  Litigants have to petition the Supreme Court to accept certiorari (i.e., to review their case).  Although the Court has jurisdiction to hear and decide almost any case involving an issue of constitutional of federal law, it doesn’t have to.  Moreover, the Court has long declined to review cases involving the Second Amendment—perhaps due to conservative justices blocking their review in an effort to prevent the long liberal majority from making “bad law.”  (Now that the Court has a conservative majority with pro-Second Amendment leanings, this could a change and the contours of the Second Amendment may finally be developed.) 

Given the dearth of precedent on the Second Amendment, it is unclear how, or even if, a legal challenge to an AR ban would fare in the Supreme Court.

The “Voluntary” Buyback.

“At least we would get to keep the ARs we already have, right?”

Nope.

At least that’s not what Joe wants.

The original 1994 Ban left alone ARs that were legally possessed at the time of its passage.  The 2019 Bill would have done the same, but the second and third goals of Biden’s “Plan to End Our Gun Violence Epidemic” are:

  • “Regulate the possession of existing assault weapons under the National Firearms Act [NFA]”; and
  • “Buy back the assault weapons” already possessed.

According to Biden, this would give current owners of ARs two “two options: sell the weapons to the government, or register them under the National Firearms Act.”8 

Of course, he neglected to mention:  it costs $200 to register a firearm under the NFA.  That means current owners of ARs would have pay $200 to register each of their ARs.  (Hey—maybe that’s how they plan to pay for the buyback program!)

Could gun control legislation also amend the NFA to make the registration fee, say, $2,500?  What about $5,000?  They sure could.  That’s more than most ARs even cost!

And do you think the government would buy back your AR at a fair price even if you wanted to sell it?  Fat chance.  Historically, buyback programs in the states have offered a couple hundred dollars at best for rifles.

Would you spend thousands of dollars—maybe tens of thousands of dollars— to register your ARs under the NFA?  Do you even have that money to spend?  And if it’s a “choice” between spending that money to register your ARs or give your ARs to the government pursuant to a buyback program, is that really a choice at all?

Summary

In summary, the threat of another AR ban is real.  But this time, the ban could be even broader and sweeping and include a coercive buyback program that disarms the American people.  This not a Biden/Harris pet project, but a long-term goal of the left.  Although there are real and substantial obstacles to the passage and enforcement of any AR ban—largely a Republican Senate (if that happens) and our newly conservative Supreme Court—they are not guaranteed to succeed, now or in the future.  What is for sure, is that in the case of a Biden victory, the first 100 days after the inauguration will show us clearly the challenges we may face over the next four years.

Written by Brooke Afshari at Blackout Defense. Brooke is a graduate of the University of Arizona, James E. Rogers College of Law and worked for several years as an Assistant U.S. Attorney at the U.S. Attorney’s Office, where she took a particular interest in the prosecution of gun crimes. Brooke encourages legal and responsible gun ownership.

Footnotes:

1 Joe Biden for President: Official Campaign Website, The Biden Plan to End Our Gun Violence Epidemic, available at https://joebiden.com/gunsafety/

2 USA Today, Kamala Harris Promises Executive Action on Gun Control if Elected (Nov. 6, 2019), available at https://www.usatoday.com/story/news/politics/elections/2019/04/23/kamala-harris-promises-executive-action-gun-control-elected/3548859002/

3 Public Safety and Recreational Use Firearms Safety Act, H.R. 4296, 103rd Cong. (1993-1994), Sec. 2(B), available at https://www.congress.gov/bill/103rd-congress/house-bill/4296/text

4 Id. at Sec. 2(A).

5 Joe Biden for President: Official Campaign Website, The Biden Plan to End Our Gun Violence Epidemic, available at https://joebiden.com/gunsafety/

6 Assault Weapons Ban of 2019, S. 66, 116th Cong. (2019-2020), available at https://www.congress.gov/bill/116th-congress/senate-bill/66/text

7 Assault Weapons Ban of 2019, S. 66, 116th Cong. (2019-2020), Sec. 2(A)(1), available at https://www.congress.gov/bill/116th-congress/senate-bill/66/text

8 Joe Biden for President: Official Campaign Website, The Biden Plan to End Our Gun Violence Epidemic, available at https://joebiden.com/gunsafety/

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