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Biden Gun Confiscation: Will Courts Protect The 2A?

Not-the-President Joe Biden has called for a national assault weapons ban in the wake of two recent mass shooting incidents.

"I don't need to wait another minute, let alone an hour, to take common sense steps that will save lives in the future," Biden said. "We can ban assault weapons and high-capacity magazines in this country once again. I got that done when I was a senator. It passed, it was the law for the longest time and it brought down these mass killings. We should do it again."


This despite the fact that "There is no compelling evidence that it [the previous assault weapons ban] saved lives," Duke University public policy experts Philip Cook and Kristin Goss wrote in their book "The Gun Debate: What Everyone Needs to Know."


In an article by Lois Beckett for ProPublica, cited by our buddy Dan Bongino, Ms. Becket reported a definitive study of the 1994 law – which prohibited the manufacture and sale of semiautomatic guns with "military-style features" such pistol grips or bayonet mounts as well as magazines holding more than ten rounds of ammunition – found no evidence that it had reduced overall gun crime or made shootings less lethal. "We cannot clearly credit the ban with any of the nation's recent drop in gun violence," the Department of Justice-funded study concluded in 2004. "Should it be renewed, the ban's effects on gun violence are likely to be small at best and perhaps too small for reliable measurement."


Of course, this won’t stop Joe Biden and the Democrats from trying to ban and confiscate guns they don’t like – and so far, the courts have been split on whether or how much to protect the right to keep and bear arms guaranteed by the Constitution’s Second Amendment.


The most immediate threat is some sort of “executive action” through an Executive Order or Memorandum issued by the President, which Biden has been threatening since before he was allegedly elected.


The record of courts upholding those types of executive action is spotty – it seems like if it was a Trump executive action Democrats could find a Left-leaning judge to enjoin them on demand, Biden’s Executive Orders have fared much better.


But the Sixth Circuit court did take a useful step toward curbing executive overreach when ruled that bump stocks are NOT machine guns despite the tyrannical ATF incorrectly classifying them as such.


Gun Owners of America (GOA), Gun Owners Foundation (GOF), the Virginia Citizens Defense League (VCDL), Matt Watkins, Tim Harmsen of the Military Arms Channel, and GOA’s Texas Director, Rachel Malone, argued, and the court agreed, that:


With or without a bump stock, a semiautomatic firearm is capable of firing only a single shot for each pull of the trigger and is unable to fire again until the trigger is released, and the hammer of the firearm is reset.


But, most importantly, as Ammoland.com reported, the Sixth Circuit Court denied the ATF “Chevron deference.” Chevron deference defers to a federal agency’s interpretation of an ambiguous or unclear statute. The government argued that since the regulation wasn’t clear, the ATF could determine what is and isn’t a machine gun.


The Sixth Circuit Court ruled, “Chevron deference does not apply to agency interpretation of criminal statute thus the court does not need to decide whether agency can waive Chevron deference, therefore, the court must determine BEST MEANING of the statute.”


Senior U.S. Circuit Judge Alice Batchelder, an appointee of George H.W. Bush, wrote the panel’s majority opinion and as courthousenews.com reported, she began with analysis of the lower court’s application of Chevron deference:


She cited the 2014 U.S. Supreme Court decision in United States v. Apel, in which the nation’s high court ruled that “we have never held that the government’s reading of a criminal statute is entitled to any deference.” (Emphasis in original.)


Batchelder admitted a decision not to apply Chevron deference to the ATF’s bump stock ban furthers a circuit split with the 10th and D.C. Circuit Courts, but opined that decisions on criminal punishments cannot be left to “bureaucrats” and must be decided by the public at large.


“There is great risk,” she wrote, “if the responsibility of making moral condemnations is assigned to bureaucrats in the nation’s capital who are physically, and often culturally, distant from the rest of the country. Federal criminal laws are not administrative edicts handed down upon the masses as if the administrators were God delivering the Ten Commandments to Moses on Mount Sinai.”


Batchelder also raised separation of powers concerns, and pointed out that “it is for the judiciary to ‘say what the law is’ … and this remains equally, if not especially, true for criminal laws.” [Emphasis added by CHQ]


The Sixth Circuit ruling gives limited government constitutional conservatives some hope that the Constitution’s Article 1, Section 1 means what is says: “All legislative powers herein granted shall be vested in a Congress of the United States…” and that if for no other reason, judges will act to maintain their domain from bureaucratic encroachment by preserving the separation of powers in criminal matters related to firearms.


But what the Court in the Sixth Circuit giveth, the Court in the Ninth Circuit may taketh away.


In this case, Plaintiff George Young sued Hawaii in 2012 for denying his applications for permits to carry a concealed or openly visible handgun. A Hawaii state law requires a license to carry a gun in public.


Last week, a divided en banc Ninth Circuit panel ruled that Americans have no right to carry guns in public, reversing a prior Ninth Circuit decision that struck down a Hawaii firearm restriction as unconstitutional.


“There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment,” U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, wrote for the majority of an 11-judge panel in a 127-page opinion.


Regarding this case, courthousenews.com reported, in a written dissent, Senior U.S. Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointee, said the majority failed to properly interpret the U.S. Supreme Court’s 2008 decision in District of Columba v. Heller, which overturned Washington D.C.’s total ban on handguns and a requirement that rifles and shotguns be kept unloaded and disassembled or bound by a trigger-lock device.


“The Second Amendment’s text, history, and structure, and the Supreme Court’s reasoning in Heller, all point squarely to the same conclusion: Armed self-defense in public is at the very core of the Second Amendment right,” O’Scannlain wrote.


“The Ninth Circuit’s opinion, which finds the Second Amendment right does not apply outside the home at all, contradicts the decisions of every federal circuit court in the country that has ruled on this issue,” Alan Beck said in an email to courthousenews.com. “We will be seeking Supreme Court review in order to overturn the Ninth Circuit’s erroneous decision.”


By upholding state laws that restrict carrying guns in public, the Ninth Circuit joined three other circuit courts that have issued similar rulings: the Second, Third and Fourth Circuits. Meanwhile, the D.C. Circuit and Seventh Circuit have struck down state laws that ban carrying guns in public. That makes the dispute ripe for Supreme Court review.


CHQ Editor George Rasley is a certified rifle and pistol instructor, a Glock ® certified pistol armorer and a veteran of over 300 political campaigns, including every Republican presidential campaign from 1976 to 2008. He served as lead advance representative for Governor Sarah Palin in 2008 and has served as a staff member, consultant, or advance representative for some of America's most recognized conservative Republican political figures, including President Ronald Reagan and Jack Kemp. A member of American MENSA, he served in policy and communications positions on the House and Senate staff, and during the George H.W. Bush administration he served on the White House staff of Vice President Dan Quayle.


  • Joe Biden

  • gun control

  • executive order

  • universal background checks

  • Second Amendment

  • Assault weapons ban

  • high capacity magazines

  • gun violence

  • Gun Owners of America (GOA)

  • ATF

  • Chevron deference

  • Concealed Carry

  • Carrying guns in public

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