President Biden announced numerous new gun control measures on Thursday, saying that he believes claims that the measures he’s proposing, which block access to the rights enumerated for protection in the Second Amendment, are infringing on the Second Amendment are “phony arguments.”
“Nothing — nothing I’m about to recommend in any way impinges on the Second Amendment. They’re phony arguments,” Biden said. “No amendment, no amendment to the Constitution is absolute.”
“You can’t yell ‘fire’ in a crowded movie theater — recall a freedom of speech,” Biden added to support his statement, citing an analogy used by Supreme Court Justice Holmes in a since overturned Supreme Court decision, U.S. v. Schenck (1919).
“From the very beginning, you couldn’t own any weapon you wanted to own. From the very beginning that the Second Amendment existed, certain people weren’t allowed to have weapons,” Biden said, ignoring that the first national gun law was the 1934 National Firearms Act, and that the Second Amendment did not apply to states until the Fourteenth Amendment.
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Biden’s claim that his recommendations do not impinge “on the Second Amendment” are dubious. For example, Biden urged Congress to pass national “red flag” laws, which allows the government to bar individuals that are deemed a present danger but have not committed a crime from purchasing a firearm, and, as economist Raheem Williams explained, “this backward process would imply that the Second Amendment is a privilege, not a right.”
The role of the federal government is to “protect” the right to bear arms, “red flag” laws are antithetical to the intent behind the Second Amendment. As the Supreme Court ruled in District of Columbia v. Heller (2008), “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia.” The case defined “bearable arms” as “weapons” that can be “carr[ied]. . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.”
Further, the Supreme Court ruled in Caetano v. Massachusetts (2016) that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and the Second Amendment is not limited to “only those weapons useful in warfare.”
