President Biden’s press conference on guns was filled with inaccuracies and false claims. Ironically, during the campaign last year, Biden disparaged the use of executive orders, “if you can’t get the votes … you can’t [legislate] by executive order unless you’re a dictator. We’re a democracy.” Even more importantly, the changes are arbitrary and won’t make Americans safer.
Biden’s comments on Thursday focused only on the costs of guns, while ignoring any benefits, which risks costing lives. Biden talked about the spike in murders last year, but he completely ignored how letting inmates out of jails and prisons, ordering police to stand down, defunding police, and prosecutors refusing to prosecute criminals caused more crime. Not one sentence in his discussion on violence mentioned that.
Despite Democrats having control of both houses of Congress, Biden doesn’t have the votes to change the legal definition of a firearm. So he wants to change the definition with an executive order. That way, he hopes to be able to better target so-called “ghost guns" made out of parts that require machine tools to finish.
The problem is the Bureau of Alcohol, Tobacco, Firearms, and Explosives’s definition, whereby something is not a firearm when “the fire-control cavity area is [a] completely solid and un-machined” block of metal. Existing law defines a firearm as a weapon that can fire a bullet or that can be “readily converted” to do so. The problem is that a solid block of metal isn’t "readily" convertible to a gun. If the Biden administration successfully defines solid lumps of metal as firearms, they will have to include a long list of items that aren’t firearms.
In addition, with 3D printing and machine tools, those who want to make guns can do so
What Biden has going for him is that Democrats completely dominate the DC circuit, and that court handles regulatory issues. It might take five years or more before the Supreme Court could pick up the case, though they have been very reticent to look at any gun cases for over a decade and Circuit courts are the final word on about 99 percent of cases.
As with so much of the gun control debate, a single event motivates a whole new area of gun control. The Boulder, Colorado, murderer used a stabilizer on his handgun. The braces were originally designed to allow wounded and disabled veterans to hold handguns, and they are literally just a strap attached to the gun. Disabled individuals are often viewed as easy targets by criminals, and stabilizers make it easier for them to defend themselves.
There is no evidence that the stabilizer helped target people at close range, and the shooter didn’t have any problem holding the handgun normally.
Biden also announced that he is asking the DOJ to develop a national Red Flag law, which takes away the guns of people accused of being dangerous to themselves or others. Never mind that the recent mass public shootings in Colorado and California took place in states that already had such laws.
But there is a much more effective alternative already in place. They are commonly known as Baker Act statutes, and have been around since the early 1970s. They allow police, doctors, and family members to have someone held for a 72-hour mental health examination based upon a simple reasonableness test – little more than a guess or a hunch.
These laws focus on mental illness, and they require that mental health care experts evaluate the individual. If a person can’t afford a lawyer, they get a public defender. While judges can involuntarily commit an individual they believe is a danger to themselves or others, they also have a range of less draconian options to start with.
Red Flag laws are primarily used in suicide prevention. But only one state’s law even mentions mental illness. Neither currently proposed federal bills nor any existing state laws require that a mental-health expert be involved in evaluating the person.
And, unlike Baker Act statutes, Red Flag laws don’t offer safeguards such as providing a public defender for individuals who can’t afford a lawyer. Few people can afford to pay the $10,000 or more lawyer fees, and even if they want to own guns, it isn’t worth it.
Under these laws, initial confiscations of firearms often require just a “reasonable suspicion,” which is little more than a guess or a hunch. Judges rely on a mere piece of paper in front of them when they decide to take away a person’s guns. When hearings occur up to a month later, about a third of these initial orders are overturned. But, as lawyers are rarely present, the actual error rate is undoubtedly much higher.
If you believe that someone is a danger to themselves or others, simply taking away their legally owned guns isn’t enough. When people really pose a clear danger to themselves or others, confine them to a mental-health facility. Guns are only one way they can do harm, and if they are intent on hurting others or themselves, they can find a way.
Consider, also, the impact that Red Flag laws can have on people who need and want help. Absent such laws, a person contemplating suicide might speak to a friend or family member and be dissuaded from that dire course of action. With the laws, they may fear that speaking out will result in a report to authorities – and their ability to defend themselves or loved ones would be restricted.
Take the case of a woman I know who saw her husband murdered in front of her by a stalker. Understandably, she was incredibly depressed, but still fearful for her safety. Under Red Flag laws, she wouldn’t confide her feelings in others out of trepidation that she may lose her ability to protect herself. Even a well-meaning person might have gone to a judge to have this woman’s ability to defend herself taken away.
The research shows that Red Flag laws don’t reduce suicide or crime, and there is some evidence it might actually increase crime.
Too often the approach of gun control advocates has nothing to do with the crimes that they focus on. If Biden wanted to do something brave to save lives, he would speak out against the changes in local law enforcement that have caused more crime.
Lott is the president of the Crime Prevention Research Center. From October 2020 to January 2021, Lott was the senior adviser for research and statistics at the U.S. Department of Justice’s Office of Legal Policy, and worked on vote fraud issues.