By Emily Taylor
On the third anniversary of the horrific Parkland massacre, the White House released a statement challenging Congress to pursue gun control in this legislative session. Representative Sheila Jackson Lee from Texas has already introduced HR 127, which is a gun-grabber’s dream bill.
HR 127 would be a nightmare for gun owners, but it is a long shot to pass. However, just because one bill is unlikely to pass doesn’t mean gun owners can relax. The White House’s statement specifically called for three avenues of attack on the Second Amendment: a repeal of the Protection of Lawful Commerce in Arms Act, a new assault weapons ban, and universal background checks. The White House statement echoes the President’s platform during the election.
Overturning the Protection of Lawful Commerce in Arms Act
Most people have never heard of the Protection of Lawful Commerce in Arms Act (“PLCAA”). The President mentioned repealing this law first in his policy statement during the election, which indicates it’s a high priority. Why is this law so important?
The PLCAA was signed into federal law by President George W. Bush in 2005 and provides protection for firearms manufacturers and dealers from legal liability if crimes are committed with their products. This protection does not extend to lawsuits against dealers and manufacturers for defective products, breaches of contract, criminal misconduct, or negligent entrustment.
The intention behind the law is to protect the firearms industry from liability resulting from criminals using their products to commit crimes. Previously, gun manufacturers and dealers were sued for negligence (somewhat successfully) by survivors or the family of victims for crimes where firearms were used. The prevailing theory was that the firearms industry should have known their products would be used by evildoers, and thus, should be held financially liable for their crimes.
This law has been unsuccessfully challenged by lawsuits several times since its enactment, but one case, Gustafson v. Springfield Armory, is still pending in the Pennsylvania Superior Court.
The PLCAA is an important piece of legislation protecting the firearms industry from what has been described as death by a thousand cuts. The ability to bury the industry in lawsuits could cause smaller companies to simply shut their doors under the legal burden of defending themselves.
Unfortunately, because few people have heard of the PLCAA, a bill to repeal it won’t generate hundreds of thousands of phone calls and letters to Congress like a new assault weapons ban surely will. Speaking of which . . .
A New Assault Weapons Ban
The very next item on the President’s policy list is a new assault weapons ban (“AWB”). It specifically mentions learning from the “mistakes” of the 1994 AWB, which then-Senator Joseph Biden helped pass.
The 1994 AWB banned outright the manufacture and transfer of certain specifically named semi-automatic firearms and created the “two feature” test to define “assault weapons” that weren’t mentioned by name. For example, a semi-automatic rifle banned under the statute had to first have a detachable magazine, and then two military-style features such as a threaded barrel and a bayonet lug.
It also banned the manufacture of new rifle or pistol magazines that held more than 10 rounds, unless those magazines were marked for military or law enforcement use.
This ban grandfathered in previously legally owned weapons, but no prohibited firearm could be acquired or manufactured after September 13, 1994. Thankfully, the drafters of the AWB included a “sunset provision,” which stated that the ban would expire 10 years later—in 2004. Attempts to renew the AWB thus far have been unsuccessful.
President Biden’s policy paper establishes that under the new AWB, existing so-called “assault weapons” would have to be registered as National Firearms Act (“NFA”) firearms, which would cost gun owners $200 for every “assault weapon” they own. The NFA currently requires a $200 tax for many items such as machine guns, short-barreled rifles and shotguns, or suppressors.
The new Biden AWB would call for a ban on the manufacture or sale of “assault weapons” and “high-capacity” magazines, regulate existing NFA items, propose a buyback of civilian-owned “assault weapons” and “high-capacity” magazines, and aim to reduce the “stockpiling of weapons.”
Universal Background Checks
Another legislative priority for the new administration is “universal” background checks. The Obama administration briefly attempted such a bill after the Sandy Hook Elementary School shooting, but it was defeated in the Senate. President Biden’s policy paper lists universal background checks as his third highest priority.
The National Instant Criminal Background Check System (“NICS”) is currently utilized in commercial firearms sales that require the completion of a Form 4473. However, many states allow the private sale of firearms that do not require any sort of background check. President Biden plans to close that “loophole” and require NICS checks on all firearm sales—including private sales.
Biden’s Additional Gun Control Plans
The plan also calls for banning those adjudicated by the Social Security Administration as unable to manage their affairs for mental reasons, fugitives from justice (already prohibited), and people convicted of misdemeanor hate crimes from owning, possessing, or transporting firearms.
Biden’s plan calls for an end to the “Charleston Loophole.” This so-called loophole allows a Federal Firearms License (“FFL”) dealer to complete a firearm transaction if a “deny” response from the FBI is not received within three business days.
Biden also plans to enact legislation to prohibit all online sales of firearms, ammunition, gun kits, and gun parts.
What About Congress?
The current political landscape is complicated. Democrats have a 10-seat majority in the House of Representatives. The Senate is a 50-50 tie between Republicans and Democrats, with the tie-breaking vote going to the Vice President.
In 1994, passage of the federal Assault Weapons Ban was at least partly responsible for a 54-seat swing in the next election that switched control of the House of Representatives for the first time since 1954. Many current anti-gun Congressional leaders were serving at that time, and might be hesitant to repeat those events. Further complicating the passage of major gun control is the Senate filibuster.
The Senate filibuster is a procedure in which a group of senators, usually along political lines, attempts to delay or block a vote on a bill by extending debate on the proposed legislation. If new legislation is presented that would erode the Second Amendment, most Republican senators would likely join in a filibuster to stop its passage.
The last bump in the road for any potential gun control is the Supreme Court. With a presumptive pro-gun majority on the court, the thinking is that gun control advocates won’t want to risk a landmark decision that declares an “assault weapons” ban unconstitutional.
What’s Likely to Happen?
The most likely avenues of attack are repealing the PLCAA and passing a new universal background check bill, because an AWB with the potential to pass would generate intense political opposition and backlash. People write letters and make phone calls over assault weapons bans, but we don’t see the same level of engagement over obscure liability laws.
What Can I Do?
The first thing you can do is get to know your representatives. Don’t wait until there’s a gun control bill coming up for a vote. Send them a polite email now that lays out your concerns and why you support the right to keep and bear arms.
Go to town hall meetings, ask questions, and be polite and professional. Election day isn’t the only time for your voice to be heard, and putting a face to the name is an effective practice.
Another great option is to get involved locally. Many individual states have state rifle and pistol associations, many of which have been very successful at lobbying their state legislators and influencing key political decisions. Make sure to do your research on your state’s association, because not all of them are created equal.
Finally, be a living example of a “good guy” gun owner. When the media slanders gun owners as aggressive insurrectionist maniacs, be the person who pops into your non-gun owning friends’ minds: “Wait, Bob owns guns and he’s not like that.” Putting an actual name and a face on gun rights can change how people who otherwise don’t have an opinion on these matters vote.
Hope isn’t lost. Yes, the Second Amendment faces a tough federal battle for the next few years. That means now, more than ever, it’s important for law-abiding gun owners to get involved. Take someone shooting, join your state associations, call your representative, and most importantly, stay vigilant.
Emily Taylor is a partner with Walker & Taylor, PLLC.