Come on, gun confiscation and mandatory buybacks are unconstitutional, says ...

Robert Francis “Beto” O’Rourke might have exited the 2020 Democratic presidential sweepstakes, but his legacy lives on … in headaches for everyone else. After almost singlehandedly raising expectations for massive “buybacks” of so-called assault rifles, O’Rourke forced the issue onto the candidates who remain in the race. Bernie Sanders, who has been reluctant at times to take up gun control, had to dash the hopes of this young woman who told him that her vote depended on Beto’s confiscation plan.

Sanders turned into Captain Buzzkill in this Iowa town hall event. Watch the faces of his volunteers on the stage behind him when he tells this voter that mandatory buybacks won’t ever pass constitutional muster (via Townhall’s Julio Rosas):

VOTER: Hi, my name is Grace, and my issue — my question revolves around gun violence. Gun violence is an incredibly complex, large epidemic in our country, and I am undecided right now, but I am choosing to [unintelligible] support a candidate who prioritizes that. And I wanted to ask what your plan is to combat this epidemic, but also specifically wanted to see if mandatory buybacks for AR-15 and AK-47s is something you would consider.

SANDERS: Well, let me tell you what my plan is now, and I don’t support that.  A mandatory buyback is essentially confiscation, which I think is unconstitutional. It means I am going to walk in your house and take something whether you like it or not. I don’t think that stands up to constitutional scrutiny.

Sanders has this much precisely correct. O’Rourke’s grandstanding aside, there is no precedent for the federal government demanding the surrender of previously legal material of any kind from private ownership, let alone firearms protected under the Second Amendment. The proposal also implicates the Fourth Amendment prohibiting searches without probable cause and warrants. O’Rourke’s proposal might have been the most authoritarian policy floated by any serious presidential candidate in decades.

That doesn’t mean that Sanders is entirely a voice of reason on this issue. On his campaign website, Sanders declares his desire for a new assault-weapons ban, although he’s not specific as to the AR-15 or the AK-47:

We face an epidemic of gun violence in this country. A significant majority of Americans want commonsense gun reform. But the NRA, now a full-fledged, right-wing political organization, spends millions on TV and internet ads attacking candidates who dare to stand up for what voters want. We must:

  • Take on the NRA and its corrupting effect on Washington. The NRA has become a partisan lobbying public-relations entity for gun manufacturers, and its influence must be stopped.
  • Expand background checks.
  • End the gun show loophole. All gun purchases should be subject to the same background check standards.
  • Ban the sale and distribution of assault weapons. Assault weapons are designed and sold as tools of war. There is absolutely no reason why these firearms should be sold to civilians.
  • Prohibit high-capacity ammunition magazines.
  • Crack down on “straw purchases” where people buy guns for criminals.

The “epidemic of gun violence” has actually declined since the expiration of the previous assault-weapons ban. The vast majority of gun violence involves pistols rather than long-barrel firearms anyway; according to FBI statistics from 2017, rifles of all kinds only account for less than four percent of all firearms homicides — and so-called “assault weapons” are a subset of that group. Knives account for 10.5% of all overall homicides, and “personal instruments” — “hands, feet, etc” — account for nearly five percent.

The assault weapons ban is likely to suffer with constitutional scrutiny, too. The Heller decision ruled that weapons in wide use by otherwise law-abiding citizens do not qualify as exotic enough to sustain a ban. Sanders elides that issue on his website — as well as a similar problem regarding “high capacity ammunition magazines,” which is about as vague as it gets.

At least on the mandatory buyback issue, Sanders gets it correct. The question will be whether Beto has promised voters so much that anything short of that will kill their enthusiasm. Those volunteers behind Bernie didn’t seem to excited by his answer.