After recent mass shootings in the U.S, President Joe Biden asked at a press conference: “When in God’s name will we do what we all know in our gut needs to be done?”
Polling suggests the majority of Americans favour stricter gun laws.
So, if Biden is in charge, why can’t he fix the problem himself? Let’s explain.
Obstacle 1: Constitution
The U.S. Constitution is the ultimate legal authority – laws cannot violate its principles.
It’s up to the Supreme Court – the highest court in the U.S. – to interpret and apply those principles. If the Supreme Court decides a law is unconstitutional, the law is overturned.
The relevant part of the Constitution for gun control is the Second Amendment, which reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
What does that mean, exactly? It has not always been interpreted as guaranteeing every individual the constitutional right to own a gun. In fact, Congress passed a law in 1994 banning assault weapons for ten years and it was not overturned.
However, a 2008 Supreme Court decision (called ‘Heller’) interpreted the Second Amendment as guaranteeing individual gun ownership rights. It’s likely that any law passed today to restrict gun ownership would be viewed by the Supreme Court as in breach of the Constitution, since a majority of Justices on the Court are Republican-aligned.
Obstacle 2: Congress
Even leaving aside the constitutional issue, there’s another obstacle: Congress passes laws, not the President.
Congress is the collective term for the U.S. House of Representatives and the Senate. A bill must pass both houses to become law.
There are unlikely to be enough votes in support of gun control in Congress to pass any laws, in particular in the Senate.
The reason for this is a split between the two major parties in the U.S. – Democrats and Republicans. Most Democrats in Congress support stricter gun control laws, but most Republicans have been consistently opposed to tighter gun laws.
At the moment, the Senate is split 50-50 between Democrats and Republicans, but a gun control bill would effectively need 60 votes to succeed. That’s because of a Senate rule called the ‘filibuster’.
What is the Filibuster?
The ‘filibuster’ rule allows Senators who oppose a bill to delay debating it, and thereby delay voting on it.
It takes 60 votes to end debate and proceed to a final vote. This means, in reality, the bar for passing contentious legislation is 60, not 50.
What about executive orders?
The President can make executive orders to direct government agencies and officials to take certain actions. However, this power is limited.
Whilst Biden has signed executive orders to crack down on illegal or unregistered guns and expand “community violence interventions,” he has not moved to restrict gun ownership due to anticipated opposition.
Congress can also pass laws to invalidate an executive order and the Supreme Court can overturn an executive order.
Like Australian states, U.S. states can pass their own laws, although the Constitution says that Federal laws override them where they conflict. States can (and do) pass some measures to restrict gun access.
Seven states have banned certain types of assault weapons – California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, and New York, plus Washington, D.C.
Like Federal laws, state laws can be challenged and overturned by the Supreme Court if it considers them unconstitutional, so this constrains what states can do (we’ve seen this in action recently in Texas and Oklahoma).
However, most state governments don’t even want to control guns. 30 of the 50 U.S. state governments are currently controlled by Republicans, and Republican-controlled states have often loosened gun restrictions after massacres.