The Gun Restrictions Hidden Behind Roe v. Wade
While the country was either celebrating or rioting in the wake of the Supreme Court’s overturn of the landmark decision in Roe v. Wade, the most expansive gun restriction legislation in twenty years quietly passed the Senate. Since then, Democrat President Joe Biden predictably signed it into law. Senate Bill 2938, or the “Bipartisan Safer Communities Act,” marks the greatest assault on the Second Amendment since the 1986 Firearm Owners’ Protection Act (FOPA). The Brady gun control group called it “the strongest gun violence prevention law in the last 30 years.”
Senate Minority Leader Mitch McConnell of Kentucky supported the bill and recruited 14 other Republicans to enable its passage. Despite public apprehension, Senator McConnell noted that “The American people do not have to choose between safer schools and the Constitution, and neither does the United States Senate.” Mr. McConnell is 100% correct in this assessment; instead of choosing safer schools and the Constitution, he and all other signers opted to reject both.
The White House explained that this law “enhances certain restrictions and penalties on firearms purchases; promotes evidence-based best practices for school safety; authorizes grants to expand access to mental health services; and appropriates emergency funding for mental health resources and school safety measures.” In a White House press release, President Joe Biden claimed that the bill would “help protect Americans. Kids in schools and communities will be safer because of it.” Like President Biden, prominent Democrats claimed that this legislation would “save lives and will not infringe on any law-abiding American’s Second Amendment rights.”
An examination of the law itself, however, reveals numerous Constitutional conflicts and glaring lapses in “evidence-based” solutions.
The barrage of restrictions begins in Section 12001, devoted to “Juvenile Records.” A primary tenet of this Act creates a separate definition of American citizenry for those between the ages of 18-21. This new class is held to different requirements and standards when attempting to purchase firearms. This specific, targeted demographic—and only this demographic—is exposed to more stringent requirements for the purchase of firearms. These include a longer waiting period of up to 10 additional days. Part of this extended period is to allow for expanded background checks through the National Instant Criminal Background Check System (NICS). This requirement is only placed on that specific age group to the exclusion of all others, effectively creating an additional barrier against a specific demographic of the citizenry. How this does not violate the Equal Protection Clause will doubtless be the subject of future litigation.
It can be safely presumed that this added requirement will also place an additional undue burden by increasing the fee paid by consumers for the already-required background check. This possibility is further supported by the failed attempt by Representative Nydia Velasquez (D-NY) to add an additional Federal fee for every use of the NICS database.
Beyond criticism of equal application under the law, there is no conclusive evidence that waiting periods directly cause a decrease in either violent crime or suicide rates. This is especially true for mass shootings where all but three of the last 22 mass shooters passed a background check.
Presumably, this age requirement was a response to the shootings in Uvalde, Texas and Buffalo, NY where the shooters were 18 years old. However, the average age of mass shooters is nearly 34. As for the potential for suicide prevention, the greatest increase in firearm suicide rates involve those ages 25-44. If Senator Mitch McConnel and other politicians feel that the Federal government can apply additional restrictions on firearm ownership for those aged 18-21, why would their logic not direct such restrictions on those most likely to commit mass shootings or suicide by firearm?
Another area of contention arises with the so-called “boyfriend loophole,” addressed in Section 12005. This section redefines domestic abuse to include virtually any individual in a “dating relationship.” This slippery and subjective language includes anyone and everyone who has had a “dating relationship with the victim.” It goes on to describe a “dating relationship” as “a relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.” Essentially, ambiguous phraseology is defined through additional ambiguous phraseology.
This massive definitive expansion means that anyone convicted of felonious non-spousal domestic abuse can have their Second Amendment rights permanently stripped away. But this confiscation and restriction is not limited to felonies. Senator John Cornyn (R-TX), one of the 15 Republican Senators that supported the bill, explains, “Those who are convicted of non-spousal misdemeanor domestic abuse—not felony, but misdemeanor domestic violence—will have an opportunity after five years to have their Second Amendment rights restored. But they have to have a clean record.” This law effectively adds an additional punitive measure of firearm restriction based on a misdemeanor violation.
With many states requiring only a “fear of harm” as a pretense for filing a domestic abuse accusation, false accusations have become a serious challenge to the judicial system. As of 2022, 62% of exonerations stem from perjury or false accusation. New York passed its infamous “anti-Karen” law designed to deter false accusations through additional punitive measures. Additionally, a YouGov survey found that 8% of 2,407 respondents reported being falsely accused of domestic abuse, child abuse, sexual assault, or other forms of abuse. That 8% would calculate to approximately 20.4 million Americans.
However, in cases of legitimate domestic and sexual abuse, this law only hurts those most likely to be victimized. According to the Rape, Abuse & Incest National Network (RAINN), young women ages 16-19 are four-times more likely than the general population to be victims of rape, attempted rape, or sexual assault. Women between the ages of 18-24 attending college are three times more likely to experience sexual violence; females of the same age not in college are four-times as likely.
As a consequence of this law, these high-risk groups are further impaired from acquiring a firearm for the purposes of self-defense. Though a popular position in Canada, it is decidedly incompatible with American ideology and culture and our rich history predicated on natural rights.
If any young woman has a juvenile record, she is further discriminated against by the new law and forced with an additional waiting period and potential rejection. Among other measures that reduce gun availability among law-abiding citizens, this bill will further reduce overall defensive uses of firearms, including partner abuse and attempted rape. Though historically women have been less likely to carry firearms, 71% of those that do state its purpose is specifically that of self-defense. This purpose is directly obstructed—or rather, infringed upon—by the Bipartisan Safer Communities Act.
The bill also makes additional demands of small-scale firearm sellers, primarily private transactions. Section 12002 of the Act requires anyone who sells even a single firearm with the intent “to predominantly earn a profit” to register for Federal Firearms License. This is a drastic change from the prior understanding and instantly defines anyone who sells a firearm that results in profit as “engaged in the business” of firearms sales. This was largely marketed as a solution to the mythologized “gun show loophole” that the Department of Justice revealed is not a factor in the commission of crimes. Additionally, only 0.8 percent of individuals incarcerated for a crime purchased their firearm through a gun show vendor.
Examined in its entirety, the additional burdens on law-abiding Americans would not have positively impacted any of the issues the bill is purported to address. Concerns over personal liberty aside, it applies an arbitrary age restriction that would not have prevented an overwhelming number of mass shootings. Of those few that do fall in the 18-21 year range, for the bill to have any positive impact one must assume that waiting an additional week would have magically defused the intent of these criminals towards nihilism and death.
The myopic obsession with background checks has no grounding in preventing crime or mass shootings. A majority of criminals steal guns, recover them from other crime scenes, or purchase them on the black market. Specific to mass shooters, out of the 22 highest-profile shootings—Including Uvalde and Buffalo—all but three of the shooters passed a NICS background check, and of these three two of them stole their weapons. As for the requirement of an FFL, this could easily have unintended consequences. The Las Vegas shooter who shot and killed 60 people and wounded hundreds more was able to purchase the 22 rifles he used in the shooting without scrutiny because he was an FFL holder. Clearly, he also passed a background check.
This law provides additional Federal funding for red flag laws, infamous for their abuse of due process, prohibitory legal expenses, guilty-until-proven-innocent premise, and vulnerability for abuse.
At best, this bill is a historically-illiterate solution in search of problems that further restricts the free exercise of Constitutional rights by law-abiding citizens. While Senator Mitch McConnell and other politicians might feel that it respects the Constitution and provides safety, the bill fails on both accounts, a far cry from “evidence-based” solutions.