All right, y'all, welcome to the Scott Horton Show.
I am the Director of the Libertarian Institute, Editorial Director of Antiwar.com, author of the book Fool's Errand, Time to End the War in Afghanistan, and I've recorded more than 5,000 interviews going back to 2003, all of which are available at scotthorton.org.
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All right, you guys on the line.
I've got Jacob Sullum from Reason Magazine.
Boy, do you write a lot of great stuff all the time.
Welcome back to the show, Jacob.
How are you doing?
I'm doing okay.
How are you?
I'm doing good.
So who knows what's coming up in the Congress?
Maybe you know that too, at least the beginnings of it.
But they've gotten a start, the Biden administration, on the new gun control agenda.
This one is called Joe Biden Learns to Love Gun Control by Presidential Fiat.
And they announced, what, six different executive orders the other day?
Or a six-point executive order, something like that?
Six actions.
Those are all executive orders.
And some of them are more problematic than others.
All right.
Well, take us through it.
Okay.
Well, the first thing I guess I should mention is that, I mean, the reason for that headline is that during a Democratic debate back in 2019, Biden actually scolded his current vice president Kamala Harris for saying that if Congress didn't act, she was prepared as president to unilaterally impose certain forms of gun control.
And he said at that time, we've got a constitution, we should follow the constitution.
This is really up to Congress to impose new restrictions on guns.
He seems to sort of have changed his mind because there are several proposals that Congress is considering, some of which have been already approved by the House, but it's iffy as to whether they're going to pass the Senate.
So recognizing that, he is now trying to do what he thinks he can do on his own.
So one of the actions is the nomination of David Chipman, who is a former BATF official, but more recently has been a gun control activist to head the BATF.
And the prospects for that, it's alarming to gun rights supporters, understandably so.
The prospects for that are also iffy in the Senate, half of which consists of Republicans and also includes at least a few Democrats who are supporters of the Second Amendment.
So that may be tough going.
And by the way, on that point real quick, can we talk about his role in Waco and what all you know about that?
Because there's been a lot of speculation about this, I think.
Yeah, I mean, the one thing that was odd is that he endorsed the idea that the Branch Davidians had shot down National Guard helicopters, which is not true.
So without delving into all the details of Waco, which I wrote about a lot at the time, that's pretty important because that goes to how big a threat they presented and whether the government response was appropriate.
So the fact that he seems to believe that thing, which is not true, is sort of alarming.
But I would.
And then one more thing about that was, as far as I know, they say that he was a case agent involved in the prosecution of the court case later against the survivors.
And I don't know of any other information than that.
But I do want to mention, as long as we're talking about it, that there's some disinformation going around, too, where there are trophy pictures of guys who are either FBI hostage rescue team or more likely Delta Force soldiers where they're posing over the smoldering corpses of the Davidians.
And there are people passing that around and saying that's him.
And so I just wanted to warn people that that's not really right.
If it was, there would be a link that proves it.
Anyway, go ahead.
That I have not seen.
And I think in the current context, the real cause for concern is that as head of the ATF, he would have a lot of power to sort of reinterpret the law and impose new restrictions without going to Congress, assuming the courts allow it.
And this this goes to a couple of Biden's actual proposals, which which do consist of orders to the ATF and the Justice Department, of which the ATF is part, to reinterpret law, the law and impose new restrictions without getting new new legislation.
So one of these proposals is to change the legal treatment of braces that are used with pistols, pistols they call stabilizing braces, which are supposed to help stability and accuracy.
And these, according to the ATF, are perfectly legal.
The the legal question is whether a pistol equipped with one of these braces qualifies as a short barreled rifle.
If it did, then it would be regulated under the National Firearms Act.
You'd have to register with the ATF.
You would have to pay a two hundred dollar tax.
And there will be restrictions on on how you can transport and how you can transfer it.
So the ATF has repeatedly ruled on this, and they said, no, as long as this is not intended to be fired from the shoulder, which is the part of the legal definition of a rifle.
It's not a rifle.
Therefore, it's not a short, short barreled rifle.
And Biden is saying he's telling them, you know, you need to change that.
You need to reverse that position.
And his rationale is really solely because of the mass shooting last month in Boulder, where the perpetrator apparently used an AR style pistol that was equipped with a stabilizing brace.
That's really the only I mean, he hasn't cited any other cases where that have involved that accessory.
It's the only one he talks about.
And the idea is that assuming it does help with stability and accuracy, that this can make mass shooters more deadly.
Now, of course, most mass shooters actually use ordinary handguns, not even, you know, assault rifles, let alone pistols of this kind.
So the importance of that, even in terms of whether it appeals to mass shooters, is questionable.
But the idea that if you don't have this brace.
Assuming you could just stop people from having them at all, that that would have any kind of noticeable impact on the frequency of mass shootings or the lethality of mass shootings.
That's really hard to buy.
But that's his assumption is what he wants to restrict that accessory, make it harder and more burdensome to possess.
And you know, if you don't register it, you don't pay the tax, then it's subject to confiscation because it's illegal.
So that's one thing he wants to do.
This is really, I mean, even even more so than so-called assault weapon bans.
This is really tinkering at the edges of this problem.
And this problem, i.e. mass shootings, is a tiny percentage, less than one percent of all gun homicides.
So the idea that this is going to have any kind of measurable impact is is really dubious.
That's one one thing he wants to do.
And the way he wants to reinterpret the law is really seems to be to contradict the plain meaning of the statute.
Yeah, in fact, on that on that point right there about the mass shootings from the news coverage and just from the number of people dying in any one of them, that seems like maybe it would be a surprising statement to some people, maybe even to me that really it's only just one percent.
But I read a thing a long time ago.
I know you know a lot about this.
And I wonder if this is also your best information, too.
I read a thing by a lady who her her her beat, her journalism beat was covering shootings from coast to coast for years, I think.
And she said that essentially Americans kill each other on Friday and Saturday nights when they're drunk.
They kill their neighbors and their wives.
And that's basically the bulk of of gun homicides in the country.
Is that your understanding, too?
I'm not sure that that description is fully accurate, but it is certainly true that that mass shootings account for a fraction of one percent of gun homicides.
So even though that gets a lot of attention and it's, you know, every time a crime like that is committed, politicians like Biden will say this shows why we need more gun control.
It's really a very, very small part of the problem.
But just I guess what I'm getting at is it's not even really crime like armed robberies and things like that.
It's crimes of passion by people drinking accidents and things they would have never done if you gave them that five minutes back kind of stuff like that is really the bulk of it.
Right.
I think that's a substantial part of it.
But I can't say exactly what percentage.
OK.
Sure.
OK.
Go ahead.
Go ahead.
I have to go and look at that.
But so so this is similar.
What Biden wants the ATF to do is similar to what the Trump administration had the ATF do with respect to bump stocks.
The ATF had repeatedly said that this is a legal accessory.
It does not make a gun into a machine gun.
And then Trump decided after the mass shooting in Las Vegas that because because the perpetrator there had bump stocks, that this needed to be banned.
And rather than going to Congress and asking it to pass a new law, which, by the way, people on both sides of that debate both said Congress needs to act.
They assumed that it could not be done administratively.
And Trump decided it should be done.
And he got the ATF to completely reverse itself in a very implausible way.
So this is analogous to that.
It's the same sort of thing where you instead of getting Congress to change the law, you unilaterally change the law.
So that's troubling in its own terms without regard to its impact on Second Amendment rights.
And the other thing he wants to do, that Biden wants to do, is get the Justice Department and the ATF to change the legal treatment of these gun kits that you can use.
They have most of what you need to make a gun, does not legally require, qualify as a gun, as a firearm.
But they call them 80 percent kits, where you get this thing and you have a few steps you have to have to take in order to make a usable firearm.
And again, perfectly legal now.
He wants to...
It's not clear whether he wants to ban those kits or restrict them in some way.
But if he wants to do that, he needs to get Congress to pass a law that authorizes it.
Instead, he's saying the ATF and the Justice Department have to figure out a way to restrict those kits so that they are either harder to get or impossible to get or whatever it is that he wants to do.
So again, the legality of that is really dubious.
And then go beyond the legality of it.
Suppose he can do that, right?
Suppose he could just ban 80 percent kits, and so you can't buy them legally anymore.
Is that going to...
What kind of impact would that have?
Now, what he says is, the problem with homemade guns is that they don't have serial numbers and if it turns up at a crime scene, police can't trace it, right?
And he says, if we ban them, it will save lives.
And you can sort of see, imagine a chain of logic there, which is, if it is harder to trace weapons when they don't have serial numbers, if more guns that are used in crimes have serial numbers, you will get a higher clearance rate for homicides.
And then ultimately, this will add up to more deterrence and ultimately, fewer murders and that's how you save lives.
Something along those lines, right?
Now, the question is, he doesn't say how common this is and the evidence I've seen from at least a few jurisdictions suggests this is not very common at all, that police are stymied by guns without serial numbers.
But that's sort of the basic idea.
So assuming that that's an issue, right?
Assuming that the availability of homemade guns is useful to criminals and if we could get rid of them, it would make life harder for criminals and make it more likely that they would be caught, right?
That'd be first I've heard of that being a problem.
Yes.
It's not, it's clearly not a very significant problem.
I mean, based on the surveys I've seen where they look at how often does this happen.
But assuming it's a problem at all and you want to try to force all criminals to use guns with serial numbers, that's sort of the idea.
Can you really do that?
No, because if you ban those kits, people can still find the parts that are necessary to make a gun.
You can't possibly ban all of those parts.
So they might have to take a few more steps.
They might have to maybe invest in a 3D printer, which is, you know, they're getting cheaper all the time.
But the point is if somebody is determined to make a gun, whether it's a hobbyist, which is the most common scenario, or actually a criminal who's thinking ahead to when he leaves his gun at the crime scene or when he doesn't dispose of his gun, you know, he's careless in disposing of his gun.
And so he's thinking, I'm going to be careless in that way.
Therefore, I want to have a gun without a serial number, just in case, something along those lines.
It's not going to stop them, right?
So you have both the legal issue, can he do this, or is it a violation of the separation of powers?
And I would say it is a violation of the separation of powers.
But then secondly, assuming he can do it, what kind of impact would it actually have on public safety?
And I would say there's no reason to think it would have a significant impact.
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All right, then the Red Flag Laws.
This is something that's going to have a hell of an impact here, there, and in all kinds of unforeseen ways, I'm afraid.
Yes.
Okay.
So this is something that he wants to do, which I think he can do.
I don't think there's any dispute about whether the Justice Department can say, here is a model law a state should adopt.
That's what he is proposing.
He wants the Justice Department within the next two months to come up with a model law.
The problem with that is to the extent that it actually influences the states, it's probably not going to be a good influence.
We don't know for sure yet because we haven't seen the details, but these laws are plagued by due process problems.
I've written about this a lot, but basically the problem is that people can come forward, allege that someone poses a threat to himself or to others, and judges will automatically issue the initial order.
That's the one that they issue without any kind of hearing.
And then at least judging from the data in Florida, for example, they almost always issue the second order, which takes away your second amendment rights for a year or so, and it can be renewed.
And the problem is that people either mistakenly think somebody is a danger or maliciously allege that that person's a danger.
And if you let all sorts of relatives and acquaintances and school officials, I mean, it varies from state to state, but if you let a long list of people come forward with these complaints and petition a court directly, then you are eliminating this layer of protection where cops and prosecutors might come in and weigh the complaint and say, ah, that doesn't really seem plausible to me.
That doesn't really hold up.
Now, I don't know how often that actually happens, but that's the theory.
The theory of requiring either police or prosecutors to be the ones who apply for these gun confiscation orders is that they will be sort of neutral parties examining these allegations and deciding whether they hold water or not.
Now, one thing Biden did say is that he wants family members or relatives to be able to directly obtain these orders.
So that means he's going to cut out that layer of protection.
Now, as to what the standard of proof would be in his model statute, I don't know, but I suspect it's going to be pretty weak.
As to other protections, such as does the target of a gun confiscation order have a right to an attorney if he can't afford one?
That's pretty important.
No states grant that right.
So there are lots of safeguards that could be included in a red flag law that would make it less likely that innocent, harmless people would lose their Second Amendment rights.
But I suspect that whatever model law Biden comes up with is not going to include those safeguards.
Yeah.
All right.
And then was that the last big one?
Those were the three that were the main causes for concern, I think, in addition to Chipman's nomination.
And then let's say the other two things.
One of them was funding for violence prevention programs, and it was $8 billion in funding.
But that is subject to congressional approval.
It's part of what is his latest extravagant spending plan called the American Jobs Plan, I believe.
Right.
So that's part of that plan.
So Congress would have to approve that.
And I don't know.
Some of those programs might actually work or might not work.
But at least it's something that he can't do unilaterally.
And oh, and then the other thing is he wants the Justice Department to produce an annual report on firearms trafficking, which, again, that's within his power to do.
Whether it will have much of an impact or not, I can't say.
And then can you comment about any upcoming legislation about this?
Are they going to try to ban AR-15s?
Yes.
I mean, Dianne Feinstein has reintroduced yet another revised, supposedly improved version of her assault weapon ban.
Biden supports that.
And the problem with all laws like that one is that they make arbitrary distinctions that don't really go to the question of how effective is this weapon going to be in the hands of a mass shooter.
Right.
So if you say you cannot have a folding or adjustable stock, which they do, you know, if you have a semi-automatic rifle that accepts a detachable magazine and it's got a folding or adjustable stock, that's an assault weapon.
So why?
I don't know.
That's what they decided.
You know, if it has a barrel shroud.
I think threaded barrel.
I think that's still on her list.
She removed, if I'm remembering correctly, she's done a bunch of revisions, so it's hard to keep track.
But I believe that bayonet mounts are allowed now.
So if you want a bayonet mount, you can have that.
It's not an assault weapon.
But she's got grenade launchers, which, you know, fine, except they're not much use without grenades and grenades are very, you know, hard to get.
Civilians will have a hard time getting grenades.
They're very strictly regulated under federal law.
And you know, various other features, any one of which transforms this otherwise legal gun into a prohibited assault weapon.
And just a parenthesis there.
People might confuse.
And in fact, even making this criticism, I stumbled to confuse the terms myself.
Assault rifle has a very simple definition.
Hold down the trigger.
Fully automatic.
Simple that.
But an assault weapon is like you're talking about.
Whatever Dianne Feinstein finds uncomfortable to look at, I guess, when she sees a picture of one.
It is.
I mean, an assault weapon literally is whatever politicians say it is.
That's the only definition.
And so the list of particular features they don't like changes, changes across.
It's a great bait and switch, though, for the general public, because they think we're talking about a law to outlaw fully automatic rifles right now.
These are all semiautomatic weapons.
That's part of the definition.
And Biden himself wrote an op ed piece for The Times a year or two ago saying on the one hand, he said the original assault weapon ban was effective.
But then he also said the problem with it is that you could modify manufacturers could modify guns and be compliant with the law, but the guns were still just as lethal.
So you might wonder if that's true, how it possibly could have had any kind of impact on mass shootings.
I mean, any impact in terms of how many people were killed.
And so he acknowledged that problem, basically, that in principle, there was no way it could have been effective, even leaving aside the fact that it grandfathered existing weapons, which, of course, Feinstein's new ban would also grandfather all the millions of so-called assault weapons that are already in circulation.
I mean, leaving that aside, the problem is that that the laws are based on features that really don't make a significant difference when it comes to how many people you can kill.
I mean, like I said, most mass shootings are carried out with ordinary handguns and you can kill a lot of people with those.
If you look at the deadliest mass shootings in the United States, many of them were committed with ordinary handguns.
So even assuming that you could magically eliminate all the guns that qualify as assault weapons, according to Dianne Feinstein, and she doesn't even purport to do that because, like I said, millions would remain in circulation, but assuming she can make them all disappear, there are plenty of equally lethal alternatives that a mass shooter can use.
That's the fundamental problem with those laws.
So and in fact, there was an op-ed piece by a well-known gun control activist in the Times just last week, I believe.
What's the guy's name?
Dan Gross, I think is his name, saying this focus on assault weapons and on mass shootings more generally is fundamentally mistaken.
Now he didn't go so far as to acknowledge that the premise of the assault weapon bans is illogical, but he did say we shouldn't be talking about that.
We should be talking about gun homicides generally, and this is a very tiny percentage of gun homicides.
So what can we do in order to affect that much broader class of gun homicides?
Now, one other proposal that actually has passed the House is to expand background check requirements for gun buyers, right?
And this is very popular.
If you look at polling on this, the vast majority of Americans think this is a no-brainer because you have rules about who's allowed to possess firearms, and what these legislators are saying is we just want to enforce those rules better.
So they would require background checks for virtually all transfers, meaning that what would currently be a private sale would have to go through a federally licensed dealer, which means it would have to include a background check.
And then they also would extend the amount of time allowed for the background check.
But the premise of this, I think, is fundamentally mistaken because it assumes that the current rules about who can own a gun make sense, which they do not.
They disqualify very large groups of people where there's no indication that they have any violent inclinations, right?
So if you commit any kind of felony at any point ever, whether it involved violence or not, whether it was actually a predatory crime or not, right?
So this includes drug offenses.
You're never allowed to own a gun.
You're never allowed to exercise the right to arm self-defense.
Does that make sense?
Are these people actually dangerous or not?
Similarly, if you've ever been forced to undergo psychiatric treatment as a result of court order, you may never own a gun legally.
So suppose you know, relatively early in life, you were deemed suicidal and you were forced into treatment.
Now it's decades later and you live in a scary neighborhood and you want to protect yourself.
You're not allowed to.
So does that make sense, right?
I mean, this is a point that Amy Coney Barrett has made when she was an appeals court judge, that the current federal law disqualifies very large groups of people based on criteria that don't really have to do with whether they're a threat to public safety.
One other thing I guess I should throw in, this is harder for the government to measure, but theoretically, if you use marijuana, even in a state where it's legal, this also disqualifies you from owning a gun.
It's a felony for you to own a gun.
It's illegal to sell you a gun if the person who's selling it to you knows that you're a marijuana user.
Does that make any kind of sense that, I mean, it'd be like saying if you're a drinker, anybody who's a drinker can't own a gun.
This would also apply to people who use a prescribed medication that was prescribed for someone else.
So say your spouse has a prescription for hydrocodone and you hurt your back and you use one of those, you are now an illegal drug user and therefore you're not allowed to own guns.
So you get the idea.
You have millions and millions of people who are legally disqualified from purchasing or possessing firearms.
If you make the background check system more comprehensive and more effective, it's going to mainly hurt those people who are not really threats to public safety.
Will it affect criminals?
Probably not, right?
Because assuming they already have felony records, they're disqualified for that reason, they're already getting their guns in a way that evades background checks.
They're going to continue to do that.
The people who supply them are not going to worry because there's yet another law that says what they're doing is illegal.
So that's the whole premise behind background checks.
And one more thing on that.
I'm sorry, but haven't they sold like 20 or 30 million AR-15s in the last 20 years since the last assault weapons ban expired?
And then does that mean that, I guess they're not going to retroactively say everybody has to turn them in, but it means that you have to somehow, everyone's rifles up for inspection to prove when they got it and whether they're grandfathered in or not and all this.
And in other words, all AR-15 owners would be presumed guilty until they could prove that they had it before 2021, something like that.
It depends on the details of the law.
Under Feinstein's law, if you owned one of the targeted guns before the law takes effect, you may continue to possess it.
You're not allowed to transfer it because it bans transfer as well as manufacture, right?
Bans sales as well as manufacture.
Biden's idea was that not only should you ban manufacture and sales going forward, but you should require all existing owners to register their guns with the federal government, right?
So that's millions of people would have to do that.
And if they didn't do that by possessing an unregistered gun that was covered by this law, they would be committing a felony.
So Feinstein's bill, at least the last version I saw, does not include a provision like that, but Biden during his campaign said that's what he favored.
Man.
All right.
Listen, I'll let you go with that and tell you how much I appreciate it because I can't keep up with this stuff, but you do such a great job on it, Jacob.
Well, thank you.
All right, you guys.
That's Jacob Sullum, senior editor at Reason Magazine.
This one is called Joe Biden Learns to Love Gun Control by Presidential Fiat.
