On Sunday, during a campaign appearance in Iowa, Bernie Sanders broke with several other current and former candidates for the 2020 Democrat presidential nomination by saying that he disagrees with confiscating “assault weapons” from their owners. Using the Democrats’ term for such a scheme, Sanders said, “a mandatory buyback is essentially confiscation, which I think is unconstitutional.”
“Buyback” is, of course, a euphemism and misnomer. The government did not sell Americans their “assault weapons,” the term civilian disarmament activists gave to various semi-automatic firearms in the 1980s. Therefore, it could not buy them “back.” Also, confiscating guns would not be confiscation “essentially,” it would be confiscation per se.
More importantly, however, Sanders’ position that confiscation of those firearms is unconstitutional is incompatible with his position that their new manufacture and acquisition should be outlawed. If it is unconstitutional to prohibit people from keeping firearms they already own, it must necessarily be unconstitutional to prohibit people from acquiring the same firearms in the future.
This is particularly the case with firearms best suited for defensive purposes, particularly the defensive purpose contemplated in the Second Amendment. Disarmament activists and most of the Democrats running for president say that “assault weapons” should be banned because they are particularly useful for combat, or words to that effect, but that only emphasizes the unconstitutionality of a ban on those guns.
In District of Columbia v. Heller (2008), the Supreme Court recognized “the individual right to possess and carry weapons in case of confrontation,” which “extends, prima facie, to all instruments that constitute bearable arms.” It cited its decision in U.S. v. Miller (1939), which recognized the right to keep and bear arms that have a “reasonable relationship to the preservation or efficiency of a well regulated militia,” including arms the use of which “could contribute to the common defense,” which certainly would include semi-automatic rifles like the ubiquitous AR-15.
More important than the unconstitutionality of banning the most useful arms for individual defensive purposes would be the immorality of prohibiting people from possessing the means with which to defend themselves, their freedom, and their liberty. Some people say the amendment “confers” the right to keep and bear arms, and every so often a frustrated civilian disarmament advocate calls for the amendment’s repeal, thinking that would end the right to arms, but both are wrong. With or without the amendment, the people have the right to defend themselves with arms.
As the Supreme Court said in U.S. v. Cruikshank (1876), the right to arms “is not a right granted by the Constitution. Neither is it dependent upon that instrument for its existence.” Likewise, in District of Columbia v. Heller (2008), the court said, “The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’” Heller also ruled that self-defense is a “fundamental” and “inherent right.”
It is possible that Sanders believes confiscating guns is unconstitutional because, as he said, it would require going into people’s homes to seize the guns. Perhaps he thinks that would be unconstitutional via some interpretation of the Fourth and Fourteenth Amendments, rather than because of the Second.
It is also possible that Sanders believes that banning the manufacture of some guns is constitutional so long as not all guns would be banned. That was the District of Columbia’s argument, defending its handgun ban in Heller. However, striking down D.C.’s handgun ban, Heller said, “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed,” because the right extends to arms “in common use” and, as noted above, “all instruments that constitute bearable arms.”
It is even possible that Sanders thinks that feigning a distinction between a ban with confiscation and one without will help him win a few votes from gun owners who don’t care what happens to Americans in the future, or even what happens to their guns after they die, so long as they get to keep their guns while they are still alive. More likely, Sanders realizes that the serious and not-so-serious contenders for the 2020 Democrat presidential nomination advocate such radically leftist policies that they have virtually no chance of being elected president as things currently stand.
By opposing something as dangerous as raiding people’s homes to confiscate guns—the modern equivalent of the event that provoked the American Revolution—Sanders may limit his chance of winning the nomination of a party increasingly dominated by leftists as radical as the Jacobins of late-18th-century France. But without some appearance of sanity on at least one important issue, Sanders may realize, whatever his chance of winning the nomination, he has no chance of winning the general election.