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What Does the Upcoming Biden Administration Mean for the 2nd Amendment?

— December 15, 2020

The results of the senate elections and the makeup of the courts will have massive impacts on what can be accomplished with regards to the 2nd Amendment.

The 2nd Amendment has been a controversial issue in the US for decades. During 2020, it took something of a backseat to the more pressing matters of the year, but it will likely receive an increase in attention after the election settles down. Determining what is likely to happen invokes both the law and ideology.

To start, let’s examine the specific policy proposals outlined by the president elect. 

Taking front and center is a call to ban “assault weapons”. An exact definition of an assault weapon is not given, but the term typically refers to semi-automatic rifles. The AR-15 has the most popularity out of these, but there are many other makes and models sold in the US. He also calls for the limiting of high-capacity magazines. To use the AR-15 as an example again, the typical magazine holds 30 rounds. Biden would seemingly like to follow laws previously passed in California which limited magazine capacities to 10 rounds. Biden would then like to introduce a registration system for assault weapons. He also has plans to introduce buyback programs to take them out of circulation.

In addition to bans and limits on firearms and firearms accessories, the President Elect has plans to revamp the background check system. The most major changes involve closing loopholes within the system. This means making it so that firearms sold between individuals, at gun shows, and anywhere else where background checks are not always conducted are subject to the same checks as firearms bought from licensed dealers.

The other major changes involve further limiting who is able to purchase a firearm. For one, they would like to make it illegal for people convicted of misdemeanor or higher hate crimes to purchase firearms. The next proposed qualification is significantly more controversial, however. They would like to expand limits on the gun rights of those suffering from mental illness. Most people do not object to, for instance, preventing someone suffering from paranoid delusions who is considering going after someone they believe to be “after them” from owning a firearm. As sad as it is to see people’s mental states devolve to that point, all rights cannot be afforded to people suffering from certain kinds of mental illness. 

However, a sweeping law that limits anyone from purchasing a gun who could be considered a danger to themselves in any way is not so simple. While there are severe cases when sane but suicidal people need assistance and intervention, there are millions of people who suffer from mental health issues that could arbitrarily be disenfranchised. On the surface, this limits the rights of Americans unnecessarily. A side-effect of this would be that many people would avoid seeking treatment or being open with treatment providers when in need of psychological assistance. 

What the Biden administration may want to do is a separate question from what they will likely to be able to do. 

The most relevant factor will be the results of the run-off election in Georgia. Georgia has consistently gone for Republican candidates since 1992, but it went for Biden this time around. However, the election was close enough that the two senate races have moved on to a run-off election. There are currently 51 Republican Senators. With the House and the Presidency locked down for the Democratic Party, these two senate races are incredibly important.

However, the closeness of the race makes it difficult to predict an outcome. Donors from across the country are giving money on both sides to sway the race in their favor, but the results must be waited for patiently.

US Supreme Court building; image by Mark Thomas, via
US Supreme Court building; image by Mark Thomas, via

The next important issue is the idea of packing the court. While the senate races are contentious, they are contentious in ways that would be expected of any political race. Proposals to increase the number of Justices on the Supreme Court are contentious in ways that are much more concerning, however.

The legality behind this is fairly simple. The number of Supreme Court justices can be raised through legislation. There is no constitutional limit on adding justices. The motives behind calls to pack the court are obvious as well. There is currently a 6-3 super majority in favor of conservatives, and packing the court is seen by some Democrats as an easy fix to this problem.

There are glaring issues with this approach, though. Perhaps the late Justice Ruth Bader Ginsburg laid them out best. If the precedent is established that a party in power can add justices anytime the Supreme Court does not favor their party, this will come back haunt to Democratic Party and the American political system itself. While it would be Democrats shaping the court in their favor this time, it would be Republicans the next chance they got. Of course, this task would be undertaken by the Democratic Party yet again as soon as possible. 

This would also corrupt the purpose of the Supreme Court as upholding the constitution and nothing else. The Supreme Court could become a vile tool for partisan politics. 

If the Supreme Court has justices added by the Biden administration, the door could be opened for more sweeping changes than would currently be available. This partisan pull to shape the courts in one side’s advantage should be resisted, however. Luckily, Democratic senators such as Diane Feinstein and Joe Manchin have expressed opposition to these measures. 

Still, the results of the senate elections and the makeup of the courts will have massive impacts on what can be accomplished with regards to the 2nd Amendment. Much of what Biden has proposed will either be a nightmare to get through or a breeze. There is the off chance that one senate race is won by a Republican and one is won by a Democrat which would make things more interesting, but the races will likely give us a more definitive answer as to how gun policy will play out over the coming years.

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