By Sam Hoober, Alien Gear Holsters
Political content is a subject that this column tends to steer clear of, but with a looming Biden presidency – if you’re really convinced it won’t happen, I have a lovely bridge for sale – is a topic worthy of talking about.
If there’s a theme with anything I’ve (poorly) written in this space over the last few years, it’s hopefully been something like keeping a firm grounding in reality and/or practicality.
When it comes to politics that means looking at the nuts and bolts of government rather than partisan carnival barking. There are plenty of people who do that better elsewhere.
So, what is a Biden presidency likely to mean?
As most are aware, comprehensive gun reform was part of Joe Biden’s proposed agenda. If you’re curious or missed it, here is the Biden Plan To End Our Gun Violence Epidemic. Among his proposed policies is a renewal/new version of the assault weapon ban he helped pass in the 90s.
Now, it’s been reported by various outlets – here is an example from the Washington Examiner – that executive action on gun control may take place in the first 90 days of the Biden administration.
Whilst the imagination of many people may run wild about just what that portends, let us remember the reality of presidential executive orders: they have the power of law so long as they fall within presidential purview.
Now, what does that actually mean?
Executive actions are perfectly legal and binding if said executive action is exercising existing law instead of creating new ones. Congress makes new laws, the executive branch tells federal agencies how to enforce it.
To illustrate the difference, federal law only allows ownership of a machine gun (select-fire capable, full auto, whatever term you want to use; feel free to debate semantics in the comments section) under certain circumstances as we all know.
You have to have the tax stamp, and then purchase a transferable gun. Pretty simple.
Bump stocks are not machine guns, but a person could argue they effectively modify an otherwise semi-automatic rifle into being a machine gun or at least like one.
Granted, was it that simple? No; they just force the stock of a semi-automatic rifle to rebound faster from recoil. If the shooter just holds their trigger finger in place, it causes something like fully automatic fire to take place, although at a far slower cyclic rate than an actual fully automatic firearm.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (the BAFTE, the ATF, the alphabet boys) had ruled by 2010 that bump stocks were just a firearm part and therefore, could be sold without issue.
In 2018, President Trump had ordered that they be treated as machine guns (or modifications that create them) and that they were hereby prohibited. This was done without an act of Congress, but instead by executive order.
Here’s how that worked:
Since the ATF has jurisdiction over guns and so on, their decision of whether a bump stock was a firearm was entirely based on their interpretation of federal law. Executive orders can direct federal agencies, such as the Department of Justice, on how federal laws are enforced.
In the case of bump stocks, the aforementioned executive order was entirely within President Trump’s purview; he directed the DOJ, and thereby the ATF, to recognize firearms with bump stocks as de facto machine guns and therefore, were illegal under the National Firearms Act.
Now, a person can make the argument that they aren’t machine guns because they have none of the mechanical parts requisite to make one, but it doesn’t matter.
The ATF, per federal law, gets to decide what is or isn’t a firearm and also what accessories are allowed or not if said accessory happens to potentially modify a gun from one that is perfectly okay for sale into one that isn’t.
It’s sort of like how you can put a hand stop (such as a Kag) on an AR pistol, but you can’t add a vertical fore grip. The former is specifically prohibited on pistols, as it converts the weapon to a long gun since it is no longer designed to be fired “by only the one hand.”
The ATF, again, interprets those rules as regarding firearms accessories unless directed by the DOJ and/or the President on how to interpret them.
Now, what the heck does any of that have to do with Biden?!
When inaugurated, President Biden (it’s gonna happen unless he keels over from a massive stroke, folks – which means we then get President Harris) will only be able to direct the ATF on how to enforce existing laws.
That DEFINITELY means no assault weapons ban to start with. However, he COULD direct the ATF to definitively nix AR and AK pistols with braces based on a more Draconian interpretation of the NFA.
So, the first 90 days may be eventful, but aside from pistol braces what will that amount to? Probably not much; the promise to end online sales of ammunition or firearms would require a law be passed by Congress and, well, see above.
So would a federal universal background check law since that would regulate private sales of private property. So would an overhaul of the Brady Act, since that’s the law that governs the NICS.
Point being that while he has promised much concerning guns and gun crime, there’s not much he’s going to be able to do by executive order.
But what about past that?
The political reality is that Joe Biden will take office with a slim Democrat majority in the House.
It’s also likely to be the case that many Republican challengers will be emerging as part of a conservative backlash and it may be the case that some Democrats may be slightly reticent to appear too liberal for fear of losing their seats, inspiring cooperation across the aisle.
Biden will also have a deadlocked senate, should the two Democratic candidates win in Georgia’s runoff election with Vice President Harris as the tie-breaker. If not, there will be a razor-thin Republican majority of 51-49 or 52-48.
This does not bode well for passing sweeping gun reform legislation. Bill Clinton enjoyed clear majorities in both houses when the assault weapons ban was passed in the 90s. He also enjoyed interns, but that’s a discussion for another time.
So what does this mean as far as a Biden presidency?
It means that while the looming specter of gun control is there, we have something keeping it at bay. That means it will be important in coming months to write to your representatives. To donate to gun rights groups that actually litigate.
Such groups include the Gun Owners of America, the Second Amendment Foundation, the Firearms Policy Coalition and – like them or not – the National Rifle Association all have taken up the cause in court at various times.
Vote in the midterms. A lot of people do their duty every four years, but lots of folks don’t do much in between. One-third of the Senate and the entire House of Representatives will be up for re-election in 2022, so bear that in mind.
Sam Hoober is a Contributing Editor to AlienGearHolsters.com, a subsidiary of Hayden, ID, based Tedder Industries, where he writes about gun accessories, gun safety, open and concealed carry tips. Click here to visit aliengearholsters.com.