In the wake of the mass shootings in El Paso and Dayton, presidential candidate Beto O’Rourke has called for confiscating assault-style weapons from the public. He claims, “Hell yes, we’re going to take your AR-15,” but is everyone on the same page? Hell no. A mandatory buyback program would have roadblocks in Congress, in the Supreme Court and among the American public.
Congressional support for an assault weapon ban will be a difficult task since it needs to get past both the House of Representatives and the Senate. Proponents of O’Rourke’s mandatory buyback program may argue that the political will is present among representatives. There are almost enough votes in the House, needing seven more signatures. The bill to ban assault weapons may pass the house, but it will not be heard on the Senate floor. Republican Senate Majority Leader Mitch McConnell refuses to hold a vote on any gun legislation, so we would solve world hunger before an assault rifle ban is debated while he is the Majority Leader.
Even if McConnell was not a problem, most senators do not support a mandatory buyback program. The Senate bill to ban assault weapons has 32 cosponsors, meaning it needs at least 28 more supporters. Due to the filibuster, it is virtually impossible to pass legislature without 60 votes, so a ban on assault-style firearms will not pass the Senate anytime soon.
Of course, some point to the “nuclear option” where the normal Senate procedures (including the filibuster) are suspended. Republicans used this back in 2017 to expedite the confirmation of Neil Gorsuch to the Supreme Court and avoid debate, so could it not be used to pass a ban on assault weapons? It could, but the GOP controls the senate majority, so it is unlikely that an assault weapons ban will make it further than the House.
Even if the mandatory buyback program made it past Congress or was passed via executive order, the ban would likely be challenged in the Supreme Court. While there is a five to four conservative majority, one could argue that only one moderate conservative would need to side with the four liberals. However, John Roberts, Samuel Alito and Clarence Thomas have already struck down similar bans on handguns in the 2015 District of Columbia v. Heller court case. The court found that handguns were necessary for self-defense and that any firearms commonly used for that purpose cannot be prohibited. Their expansion of Second Amendment protections indicates that Roberts, Alito and Thomas would similarly oppose a ban on assault weapons for similar reasons.
The bigger question is whether or not Brett Kavanaugh or Gorsuch would support a mandatory buyback program. The former has already made his position clear: Kavanaugh believes that the right to own a gun should be limited only in certain circumstances, demonstrated prominently in his 2011 dissertation opposing D.C.’s ban on assault weapons. Gorsuch has not made his position clear but has stated he will uphold the self-defense standard set in the Heller case. Thus, all gun advocates like the NRA would have to do is prove that assault weapons are commonly used to defend one’s self and property.
Unlike Congress and the Supreme Court, the public widely supports a ban on assault rifles. A Politico poll reveals that 70 percent of Americans would support the ban, including 55 percent of conservative voters. However, just because the people support the ban does not mean they have the means to pressure politicians or justices.
The public’s ability to pressure Congress has substantially decreased. Congressmen are generally too busy and their staff is often overwhelmed to take detailed comments from people who call, email or try to contact the representative in any other way. This overflow results in the constituents’ voices being reduced to white noise.
There has been a mixed opinion on the extent to which the public can influence Supreme Court decisions. Many will point to studies showing a positive correlation between public opinion and Supreme Court rulings, but those studies often omit important mechanisms and historical dynamics. Other studies show that outside of the Warren Court in the 1950s and 1960s, there is no relationship between the people and the Supreme Court.
Perhaps these dynamics will change after the 2020 election. Liberals have the chance to regain control over the Senate and a Democratic President could change the Supreme Court if conservatives vacate their spots. But for now, O’Rourke’s mandatory buyback program does not have enough political support to be implemented.