Why gun claims by Joe Biden and Democrats make little legal sense
The Democratic presidential debate down in South Carolina this week has proven once again the famous line that there are “lies, damned lies, and statistics.” The line is the perfect warning to the unwary about politicians citing statistics. The quote itself is widely misrepresented as the work of Mark Twain or British Prime Minister Benjamin Disraeli, so it seems nothing can be trusted when it comes to statistics, not even quotes on statistics.
Some false statistics, however, are so facially absurd that they are indeed harmless except to the most gullible. That was the case when former Vice President Joe Biden attacked Senator Bernie Sanders over a vote that had favored the gun industry. Biden declared that, since the vote, 150 million Americans have been killed by guns. He also said the vote happened in 2007, when it was actually in 2005. Many people immediately scratched their heads, thinking they may have missed a holocaust that had claimed roughly half the population. Later, the Biden campaign insisted it was just another one of his gaffes and the real number is 150,000 Americans.
However, even that figure is wrong, but a Democratic primary is no place for the factually preoccupied. Trillions have been pledged for reparations, free college tuition, free medical care and free child care, all to be funded using math that would embarrass Bernie Madoff. First, on the threshold statistical controversy, the Centers for Disease Control and Prevention claims that all gun deaths since 2007 total about 450,000. Thus, Biden went from overstating it by more than 300 times to understating it by three times. It is possible to get this figure down to around 180,000 by excluding the 60 percent of gun deaths that occur due to suicide.
The much greater danger, however, is not the statistical but the legal misrepresentations on gun control, and those are not confined just to Biden. After all, cracking down on guns is one of the defining issues for former New York City Mayor Michael Bloomberg, who has pledged to “stop this nationwide madness.” In the debate, Biden dramatically glared into the camera to speak directly to the National Rifle Association, saying that he will fight the organization and the gun manufacturers if elected. The other Democratic candidates have made similar claims that they will reduce gun violence significantly with executive orders and laws.
Such statements are far more dishonest than the statistical flight of fancy promoted by Biden. Gun ownership is an individual constitutional right under the Second Amendment. A constitutional right cannot be reduced or changed by either executive order or legislation. You can only work on the margins of such exercises of constitutional rights, which belies the promise by Bloomberg that these measures would make an “enormous difference.” Elizabeth Warren declared that “we need a president willing to take executive action” to end gun violence without any explanation what she can do to limit an individual right, let alone do it unilaterally.
It is true that, in the 2007 case of District of Columbia versus Dick Anthony Heller, the Supreme Court held that “like most rights, the right secured by the Second Amendment is not unlimited.” But like other constitutional rights such as the freedom of speech, legally imposed limits cannot deny the right itself but only place reasonable limits on its use. Thus, it may be possible to limit the size of ammunition magazines or such devices as bump stocks. Certainly, background checks would be allowed.
Red flag laws allowing interventions are also likely to pass muster. But those limits are unlikely to “enormously” reduce gun violence. The vast majority of gun possessors, and many of those involved in massacres, would pass background checks. Indeed, there remains a serious question of whether states could outlaw weapons like AR-15s. Even if the Supreme Court upheld such a ban, there are over eight million AR-15s in private hands, and a wide variety of guns with equal or higher firepower.
Then there is the problem that most gun deaths involve a single round fired by someone into themselves rather than into others. In 2017, six out of 10 gun deaths were suicides. Less than 40 percent were intentional murders, and the remaining gun deaths in the country were accidental or law enforcement shootings. While gun suicides reached their highest recorded level in 2017, nonsuicide deaths that involve guns have been declining and stand significantly lower from its high point in 1993.
While the other candidates on the debate stage forced Sanders into a rare flip on his vote to protect gun manufacturers from lawsuits, it was another example of a misleading promise. I actually opposed the 2005 bill that protected gun manufacturers and sellers from lawsuits because it was unnecessary and because I generally oppose legislation that limits tort liability. The Protection of Lawful Commerce in Arms Act, however, was not the sweeping immunity claimed by Biden and other candidates.
It barred liability for injuries due to the fact that firearms were later used by criminals. The bill saved the industry some litigation costs, but the industry would have prevailed in such actions anyway if they were tried. Product liability and tort actions against manufacturers have uniformly and correctly been rejected by the courts. Guns are lawful products, and holding companies liable for later misuse of such products is absurd. You might as well sue an axe manufacturer for the Lizzy Borden murders.
Thus, even if you remove immunity protections, ban certain magazines or devices, require background checks, or even ban a couple weapon types, the reduction in gun deaths would not likely fall significantly. Individuals still would have a constitutional right to possess guns. Moreover, the vast majority of guns would remain unaffected. That does not mean we should not try to reduce those fatalities or pass these measures. Any saved life is worth the effort. But candidates are misleading voters in suggesting that, if elected, they can dramatically impact the numbers of these cases.
Of course, none of that would make for a memorable debate moment for any of the candidates. Biden would be less than riveting if he glared into the camera and poked a figurative National Rifle Association in the chest while saying he would take them on and “marginally reduce the minority of deaths associated with nonsuicidal gun incidents.” That is the reason why there are lies, damned lies, statistics, and presidential debates.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.