Experts respond to Biden Second Amendment remarks

Constitutional experts are weighing in on Joe Biden’s remarks Tuesday as he called for further trimming of Americans’ gun rights.

Biden’s comments, made in the wake of this week’s Nashville school shooting which killed six including three children, matched Democrats’ uniform response to gun-related crimes which places the blame on the guns instead of the shooter.

In this case, the shooter was a woman who was being treated for an undisclosed “emotional disorder”, perhaps related to her claim that she was a man. She came to the The Covenant School with two rifles and a handgun which she had purchased legally, though Tennessee law only permits school employees to carry firearms on school campuses.

“Those children should all be with us still. I want you to know who isn’t doing it [supporting gun control], who isn’t helping, to put pressure on them,” Biden said before suggesting he is a gun enthusiast.

“I have two shotguns. My sons have shotguns. . . . [E]verybody thinks somehow the Second Amendment is absolute! You’re not allowed to go out and own an automatic weapon. You’re not allowed to own a machine gun. You’re not allowed to own a flamethrower. You’re not allowed to own so many other things. Why in God’s name do we allow these weapons in our streets and at our schools?”

Constitutional scholar and UCLA Law Professor Eugene Volokh told Frontline News it is true that “the Second Amendment doesn’t protect all people’s ability to keep and bear all arms in all places.”

“The Supreme Court has told us that it doesn’t protect, for instance, felons, or dangerous and unusual weapons that aren’t in common use (such as fully automatic weapons, which is to say machine guns), or the possession of guns in certain ‘sensitive places’ such as courthouses or schools,” said Professor Volokh.

But the violation comes when the government restricts gun rights as it sees fit, including, perhaps, a push to raise the minimum purchasing age from 18 to 21.

“If it means that the government can just restrict the right to keep and bear arms whenever it thinks that, on balance, restricting it is a good idea, that’s not right (at least under the Supreme Court’s interpretation of the provision),” adds Professor Volokh, adding that the Supreme Court expressly rejected this notion in New York Rifle Assn., Inc v. Bruen last year.

As an analogy, the Second Amendment specialist said that criminal defendants — except in some cases, such as in juvenile or military trials — have the right to be tried by a jury. The government may not decide, however, that those accused of hate crimes no longer have the right to a jury because such a leniency may allow for more crime.

Guy Smith, a Second Amendment researcher and founder of Gun Facts, explains that the Second Amendment — like any right — is absolute unless the government can prove, through due process, that an individual should not retain the right.

“The Constitution also allows disabling any right to an individual (not the public at large) after ‘due process’, which is the chain of criminal charges, representation by council, trial by jury, and conviction,” Smith tells Frontline News.

He adds that any restriction of civil rights must address a “compelling government interest” and “be very narrowly tailored to achieve that interest”.

Ironically, the Second Amendment — rather than a guarantee of self-defense against criminals — was intended as a bulwark against a tyrannical government. This would include, ostensibly, governments who seek to take its citizens’ guns.