On Guns and the Courts, Joe Biden’s Actions Are Just For Show

The president kept two campaign promises by doing nothing about them

Late last week, President Biden fulfilled a couple of pledges he made while running for the White House. The moves followed weeks of inaction that frustrated progressives who had wanted him to act immediately upon taking office. Yet Biden’s actions, though long-awaited and welcomed by activists, will in the end likely leave them even more dissatisfied. That is because both his executive orders on guns and his Supreme Court commission are empty gestures designed to placate the Democratic base without having any tangible effect.

Firing Blanks

Biden vowed last February that on his first day as president, he would send gun control legislation to Capitol Hill. A year later he still hadn’t done so.

Activists were none too pleased. While Biden signed executive orders on a variety of issues on January 20, gun control was not among them. Now he’d been in office a month and they were getting impatient. So impatient that the White House dispatched top Biden aide Cedric Richmond to reassure them. Biden released a statement urging “Congress to enact common sense gun law reforms” such as universal background checks and banning so-called assault weapons and high capacity magazines. A legislative package seemed imminent. Then the next day White House press secretary Jen Psaki said the administration had neither a legislative package nor a timeline for passing one.

In his statement, the president declared his administration wouldn’t wait for the next mass shooting to respond. There at least he was true to his word. At his first press conference on March 25, Biden again reiterated his commitment to gun control, but emphasized that getting his massive infrastructure plan through Congress came first.

“Supporters of gun control,” reported The New York Times, were “appalled” by Biden’s assertion, which came after two mass shootings in which 18 people died. One official at a gun control organization rebuked the president’s “nerve and audacity.”

The seeming transformation of a longtime champion of gun control into Bartleby on the issue led the Times to wonder, “Is Biden Missing His Chance on Guns?” Thus when he finally announced his proposals on April 8, it wasn’t unreasonable for Politico to describe them as “long-awaited” or for The Washington Post to characterize them as the result of “pressure from impatient activists.”

Yet though they welcomed the overdue delivery, campaigners were cheering more for the box than its contents. Those were rather meager. A closer look reveals just how meager.

  • Biden directed the Justice Department to promulgate a new regulation subjecting so-called ghost guns to background checks and requiring them to be stamped with serial numbers. The weapons, which are constructed from kits and parts, are exempt from these requirements because they are sold as components and not in ready-to-use condition.

  • In addition, the administration will formulate a rule adding pistol braces to the National Firearms Act. Such braces, which the attacker in the Boulder, CO supermarket shooting used, stabilize pistols and increase the wielder’s control and accuracy, allowing them, critics charge, to function more like short-barreled rifles. Such guns are already included in the NFA, which requires their owners to register them with the government and pay a fee to keep them. The Trump administration issued a similar draft rule but withdrew it late last year in the face of furious blowback from gun rights advocates.

  • The DOJ will also publish model legislation for “red flag” laws. Such laws allow weapons to be seized by court order if, upon a petition by law enforcement or family member, a person is judged to be a danger to himself or others.

  • President Biden ordered the DOJ and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF) to produce a new report on gun trafficking to update one written in 2000.

  • The administration will disburse funds to local violence prevention programs. The Department of Health and Human Services will also work with states to utilize Medicaid funds for such efforts.

“Ghost guns” and pistol braces are real things, but they constitute a tiny proportion of America’s guns. Red flag laws address a genuine issue, but again impinge on a fragment of the population. Reports and money are just that.

Biden’s most significant action was arguably his nomination of David Chipman, a former BATF official, to become the agency’s first full-time director since 2015. Chipman, a strident advocate of gun control who presently works for former congresswoman Gabby Gifford’s organization, is reviled by critics as an “anti-gun fanatic.” He is likely to be confirmed, but it will be a brutal fight.

Missing from Biden’s announcement were any proposals to ban assault weapons and high-capacity magazines or to close the “gun show loophole” (which allows private gun sales to be conducted without a background check). Absent too was any effort to repeal gun manufacturers’ immunity from certain kinds of lawsuits.

The reason for that was simple: those measures require new laws, and there is no chance Congress will pass them anytime soon. They’d need 60 votes to get through the Senate so long as the filibuster exists. As the filibuster is going nowhere fast in a 50-50 Senate, neither are the sorts of gun control those on the left truly want. What Biden’s moves did most of all was exemplify the narrow scope of his ability to act on his own.

Activists may be mollified for now, but given the likelihood this is all they’ll get, they probably won’t stay that way. And there’s no telling what a judiciary stocked with Trump judges will do once the inevitable lawsuits are filed. It’s entirely possible none of these ideas gets any further than the paper they were written on.

Full-Court Defense

Though modest, Biden’s “executive actions” on guns have some substance. The “Presidential Commission on the Supreme Court of the United States” he created the following day will literally do nothing but push paper. Its task is to produce a report studying various matters related to the court, such as the way justices are nominated, its “role and operation ... in our constitutional system,” and arguments “for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.” However, it won’t make any recommendations of its own when it releases its findings, which is likely to be in November  at the earliest.

Biden broached the idea of a commission last fall in an interview with 60 Minutes. The suggestion came at a time when the base was demanding court-packing with renewed fervor in the wake of Amy Coney Barrett’s nomination to the Supreme Court to replace the late Ruth Bader Ginsburg less than two months before the election. Biden, a professed skeptic of adding seats to the court, offered the idea of a bipartisan commission to assess the federal judiciary as an alternative.

The commission is just that: a distinguished group of 36 individuals from both sides of the political aisle. But as law professor Josh Blackman observed, its membership is composed of constitutional scholars to the exclusion of almost everyone else, including people who theoretically would have a lot to contribute to a body evaluating the Supreme Court: lawyers of every other type, historians, political scientists, and politicians. Conspicuous by their omission was anyone who advocated court-packing or other alterations to the Supreme Court. “What are we left with?” asked Blackman. “A group of mostly-reasonable people who will write a reasonable report that will make no one happy.”

Republicans predictably denounced Biden’s brainchild, but progressives gave it an equally if not frostier reception. Mark Joseph Stern, who covers legal affairs for Slate, contended that the commission’s makeup telegraphed its predetermined outcome: “Looking at the membership and goals of this commission, it seems obvious that Biden does not really want to pursue court reform.” Instead, he handed it off to a bunch of ivory tower types, never to be heard from again.

Vox’s Ian Millhiser complained that the praise it was receiving from Federalist Society members was a sure sign of its “milquetoast” nature. A furious Elie Mystal of The Nation accused Biden of wanting not a solution but "an excuse to do nothing" and creating an entity "purposefully designed to accomplish" just that. Aaron Belkin of the pro-court-packing group Take Back the Courts told USA Today in February that “we are very concerned because commissions are often places ideas go to die.” Judging by their aggrieved reactions, his fellow progressives are afraid his prediction has come true.

It was a double blow for the left, coming just a few days after Justice Stephen Breyer, the oldest member of the Supreme Court and now dean of its liberal wing, warned against court-packing in a speech he gave at Harvard. Enraged progressives reacted by demanding Breyer retire so he can be replaced by a younger black woman. Demand Justice, a left-wing group focused on the courts, started a PR campaign to get him to quit the same day Biden announced his commission.

There’s reason to think Breyer might retire at the end of the court’s current term, but new evidence indicates he may stick around for another year.

No retirement, no court-packing. It was a tough few days for progressives on the issue of the courts. Commissions are indeed where ideas go to die in Washington. The Supreme Court commission will report in November. It will probably take a few weeks or months to turn its opus into specific recommendations, if any. By then it will be 2022. Democrats are unlikely to want to push anything as controversial as court-packing in an election year. More likely, then, the report will be filed away in the same forgotten corner where other such efforts are buried. Anyone remember Bowles-Simpson?  

President Biden last week did just what he said he would: he took action on guns and formed a commission on the Supreme Court. Yet in both instances he did just enough to be able to say he was doing something. And if anyone objects, well, just because he said he’d do something, that didn’t mean it would do anything.