Biden, All Guns Blazing on Reform

Biden intends to use precious political capital on gun legislation that is likely to fail, will have significant political fallout, and if passed is unlikely to ameliorate gun violence.  Why?

I am calling on Congress to enact common sense gun law reforms, including requiring background checks on all gun sales, banning assault weapons and high-capacity magazines, and eliminating immunity for gun manufacturers who knowingly put weapons of war on our streets.—President Joe Biden

Universal Background Checks

Universal background checks are favored by 92% of American voters, with 92% support among gun owners and 86% support among Republicans.  There’s reason to believe it would have a positive effect in reducing gun crime.

Considered by itself, this would be a smart move.  Enacting legislation that is popular should be a no-brainer for politicians.  Nearly everybody supports this policy.  We could even stipulate that it amounts to common sense.

The problem is that it is being packaged by Biden with two other measures which are overall less popular, and are intensely unpopular in certain circles.

The Federal Assault Weapons Ban

On his campaign web site, President Biden describes his record of support for gun control:

In 1994, Biden – along with Senator Dianne Feinstein – secured the passage of 10-year bans on assault weapons and high-capacity magazines.

What he doesn’t mention is the political cost of that support.  The blowback to the 1994 Federal Assault Weapons Ban turned out to be severe.

“When Congress passed the assault weapons ban, the NRA vowed vengeance. Months later, the Republicans, backed by the still-outraged NRA, romped the Democrats in the midterm election, gaining 54 seats and control of the House for the first time in 40 years. [President Bill] Clinton, for one, believed that voting for the assault weapons ban had cost about 20 House Democrats their seats–meaning that the measure had caused a political backlash that led to a GOP majority in the House.”
—MotherJones: What the Fight Over Clinton’s 1994 Assault Weapons Ban Can Teach Obama

Additionally, many people believe it was responsible for Al Gore’s loss to G.W. Bush in the 2000 presidential election. Like any counter-factual argument, this can’t be proved, but it was certainly a contributing factor. Passing the Assault Weapons Ban was political suicide for the Democrats. If there had been a corresponding benefit in terms of a decrease in gun violence it might have been justified, but that was simply not the case.

The 1994 Federal Assault Weapons Ban had little, if any, effect on gun violence during the 10 years it was in effect. The idea that it did is a myth. This is open to some interpretation, but here is a good article examining the issue.

Similarly, banning “high-capacity” magazines would have little to no effect on the number or lethality of gun homicides. The shooter’s simple expedient is carrying more magazines.

Has the situation changed enough between 1994 and 2021 that we can be confident that Democrats advocating an Assault Weapons Ban won’t meet the same electoral fate?  Biden’s push to enact a ban seems reckless, especially given that it would have, at best, a minuscule impact on the overall incidence of gun violence.

Mass shootings

As far as discouraging mass shootings like the one that happened in Parkland, Florida, it’s doubtful that an assault weapons ban would help. If the shooter had used a couple of semi-automatic pistols, or a semi-automatic rifle without any “assault weapon” features, would the toll have been any different? Probably not.

Mass shootings grab headlines and hearts, but they’rea bad way to understand gun violence because they happen rarely. Their contribution to the total number of firearms deaths is small (about 2.2% in 2017).  That makes it hard to implement policies that completely eliminate them.

“[It] is nearly impossible to design a policy that can bring the incidence of an already exceptionally rare crime down to zero — and given the inherently limited nature of legislative time and resources, it would make little sense to prioritize such a marginal and difficult issue over public health challenges that kill exponentially more people.”
—New York Magazine: There Is No ‘Epidemic of Mass School Shootings’

The vast majority of homicides are not mass killings, they are the daily grind of murders that occur one or two at a time. That day-to-day killing disproportionately impacts the African-American community.

“Mass shootings, unsurprisingly, drive the national debate on gun violence. But as horrific as these massacres are, by most counts they represent less than 1 percent of all gun homicides. America’s high rate of gun murders isn’t caused by events like Sandy Hook or the shootings this fall at a community college in Oregon. It’s fueled by a relentless drumbeat of deaths of black men.“Gun control advocates and politicians frequently cite the statistic that more than 30 Americans are murdered with guns every day. What’s rarely mentioned is that roughly 15 of the 30 are black men.”
—Pro Publica: How the Gun Control Debate Ignores Black Lives’

Eliminating Immunity for Gun Manufacturers

Currently, gun manufacturers can’t be sued for crimes committed with their products.  They can still be held liable for damages resulting from defective products, breach of contract, criminal misconduct, and other actions for which they are directly responsible.

The 2005  Protection of Lawful Commerce in Arms Act (PLCAA) protects them from liability when someone uses a weapon illegally.  The PLCAA was a response to a multitude of lawsuits brought against manufacturers in preceding years.  The goal was to force gun manufacturers into bankruptcy by inflicting a “death by a thousand cuts” as Andrew Cuomo, then head of HUD, characterized it.  The intent was to achieve through litigation what could not be achieved through legislation.

Within a  few years, gun litigation had been transformed from a relatively obscure collection of personal injury cases into one of the most notable legal trends of the decade. By 2000 gun litigation was regularly front-page news, and manufacturers faced potentially bankrupting industry wide liability exposure as a result of suits by dozens of individual victims, over thirty cities, and the State of New York.
—Timothy D. Lytton, An Overview of  Lawsuits against the Gun Industry

It’s worth noting that even prior to the passage of the PLCAA, these lawsuits were being thrown out of court on the merits.  Thus, repealing the PLCAA wouldn’t immediately affect gun ownership.  However, requiring manufacturers to defend themselves against lawsuits would be onerous and expensive.  And there is the risk that eventually a lawsuit would succeed, although that seems unlikely given the current makeup of the Supreme Court.

For the most part, courts have been hostile to these claims. The great majority have been dismissed or abandoned prior to trial, and of the few favorable jury verdicts obtained by plaintiffs, all but one have been overturned on appeal.
—Timothy D. Lytton, An Overview of  Lawsuits against the Gun Industry

Basically, this is viewed by the gun rights community as a backdoor to gutting the Second Amendment.  If you can drive gun manufacturers out of business via lawsuits, you don’t have to jump through all the hoops required to repeal the amendment.  So when they say the government is coming to “take away your guns” this may be one thing they are referring to.

Of Biden’s proposed measures, this one seems like the one with the least potential benefit but the greatest likelihood of needlessly antagonizing the gun rights crowd.

A Poison Pill

Packaging a popular policy like universal background checks together with unpopular ones like an assault weapons ban and repealing the PLCAA is boneheaded.  Even if they were to end up being voted on as separate bills, the fact that Biden is pushing them together creates the perception that “the Democrats want to take your guns,” and the gun rights activists will dig in their heals on all the proposals.  That is how every session Congress fails to pass a measure that has 92% popular support.

In a Senate with such a slim Democratic margin the approach seems likely to fail; or if the unpopular measures should pass, would result in a rout in the 2022 midterms.

It will lead to increased polarization in an already fractured body politic.

2020 brought heightened anxiety due to Covid-19, elevated racial tension and economic uncertainty.  It also brought soaring gun purchases that continued into 2021.  Gun dealers sold over 2 million firearms in January, a 75% increase over the same month last year and the biggest-selling January on record. Although one may dispute whether gun ownership is the best response to anxiety, it nevertheless was where millions of Americans turned to assuage their fears.  For Biden to give the appearance of restricting something that people turned to for a sense of safety in turbulent times is ill-considered.

Meanwhile, the President will have squandered a lot of political capital that could have gone towards something much more pressing such as healthcare or the $2,000 checks he promised. Cynics will wonder whether he knows perfectly well this is going to impede progress on other commitments he made, and it’s a feature not a fault; or whether it is a quid pro quo for Bloomberg’s endorsement and $100 million in campaign spending on his behalf in Florida. Making gun control a focus of his administration at this point, and in this way, seems so obviously ill-advised that one has to wonder what is behind it.

This promises to be yet another lesson in how Democrats shoot themselves in the foot.

Here is a genuinely common sense approach to gun legislation.