Fact-check: Biden makes false, misleading statements about Second Amendment to reporters
President says early Americans couldn't buy cannons, dismisses notion of Second Amendment as bulwark against tyranny, suggests support for banning 9mm rounds.
The Facts Inside Our Reporter’s Notebook
President Biden on Monday made several false and misleading statements about the Second Amendment amid his push for tighter gun-control measures in the wake of multiple recent mass shootings.
Speaking to reporters outside the White House, Biden was asked if there was one component of reforming gun laws that he thought could be most successful now.
Biden responded that the right to bear arms contained in the Second Amendment was limited from the outset.
"Remember, the Constitution, the Second Amendment was never absolute," said Biden. "You couldn't buy a cannon when the Second Amendment was passed. You couldn't go out and purchase a lot of weapons."
Historians and legal experts widely disagree with Biden that there were such restrictions on early Americans.
"It's an absolutely brazen lie," said David Kopel, research director and Second Amendment project director at the Independence Institute. "As of 1791, when the Second Amendment was ratified, neither the federal government nor any state prohibited the ownership of any type of arm. Of course, neither the White House nor any of its allies have ever supplied a shred of evidence to support Biden's claim."
Kopel, who also works as an adjunct professor of advanced constitutional law at the University of Denver, added that the Constitution itself undermines Biden's comments.
"Indeed, the Constitution presumed that citizens would own cannons," he said. "Art. I, sect. 8, gives Congress the power to 'grant Letters of Marque and Reprisal.' That is, letters authorizing privative individuals to attack ships of enemy nations. Any ship capable of combat in the late 18th century necessarily had cannons as the primary weapon."
Indeed, in the 1790s, the nascent and until-then neglected U.S. Navy had virtually no warships, so it repurposed private merchant ships, armed with cannons, for war, effectively commissioning them into the naval service.
Monday wasn't the first time Biden said early Americans weren't allowed to own cannons — he made the same claim earlier this year, last year, and in 2020 while arguing in favor of stricter gun control. PolitiFact and the Washington Post fact-checker both rated Biden's statements as unequivocally false.
"It seems highly unlikely that there were restrictions on the private ownership [of cannons]," Julie Anne Sweet, a historian and director of military studies at Baylor University, told PolitiFact.
However, some legal experts argued that while Biden's statement was factually inaccurate, the president was really making a larger point that's correct and more important.
"No one has ever suggested that the Second Amendment means no regulation of the type of weaponry individuals can possess," said University of Pennsylvania law professor Kermit Roosevelt. "That's what [Biden's] gesturing at by talking about cannons in 1791. That might not be true as a matter of history. But everyone understands that the Second Amendment doesn't mean that individuals can have nuclear warheads and poison gas, so obviously there is some limit."
Biden made another remark in his comments Monday that have come under fire. The notion that the Second Amendment exists in part to be a final defense against tyranny, he said, is wrong and antiquated, arguing it's fantastical to imagine a citizenry standing up to a government armed with fighter jets and tanks.
"And those who — not many are saying it anymore, but there was a while there where people were saying that, you know, the Tree of Liberty is watered with the blood of patriots, and what we have to do is you have to be able to take on the government when they're wrong," said Biden. "Well, to do that, you need an F-15, you know? Or you need an Abrams tank."
However, some experts counter that focusing on the mismatch of forces ignores numerous examples of citizens, especially in the form of insurgencies, succeeding against superior forces.
"Take a look at Ukraine today, Israel in 1947-48, the armed Armenian resistance to Turkish genocide in World War I, for examples of citizens with small arms who have sometimes been able to repel standing armies that wanted to inflict mass murder," said Kopel. "That's the reason that every government that has perpetrated mass murder since 1900 — including communist, fascist, Islamist, or other — has assiduously worked to disarm the intended victims beforehand.
"Citizens with firearms can't defeat a tank, but they can kill secret police agents who are killing citizens. That is why Mao, Hitler, Stalin, Lenin, Pol Pot, and Idi Amin (among others) always tried to disarm the victims first."
Biden himself recently witnessed the ability of weaker forces to overcome superior foes in Afghanistan, where the Taliban seized power last year after outlasting the U.S. military and the Afghan armed forces, which were armed and financed by Washington.
Roosevelt acknowledged that citizens can, without heavy weaponry, resist standing militaries if the soldiers lack sufficient will to fight but added, "You'd probably need pretty sophisticated weaponry" for the "'citizens take on the federal army' reading of the Second Amendment" to make sense today.
"To defeat the federal army in battle, yes, people would need weaponry that no one suggests they should be allowed to possess," said Roosevelt, who argued the Second Amendment "was actually intended to allow state military forces to resist" federal tyranny.
"We saw that happen — it was the Civil War, and the states lost," he said.
However, the late Supreme Court Justice Antonin Scalia argued in District of Columbia v. Heller, a landmark decision that found the Second Amendment protects an individual's right to keep and bear arms unconnected with service in a militia, that the founders created the amendment precisely to allow citizens to protect against a tyrannical government.
"And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists," Scalia wrote in his opinion. "In the tumultuous decades of the 1760s and 1770s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms."
"By the time of the founding, the right to have arms had become fundamental for English subjects. [Sir William] Blackstone, whose works, we have said, 'constituted the preeminent authority on English law for the founding generation,' cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, 'the natural right of resistance and self-preservation,' and 'the right of having and using arms for self-preservation and defence.' Other contemporary authorities concurred. Thus, the right secured in 1689 as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right protecting against both public and private violence."
"How to make sense of the Second Amendment in the modern world is a difficult question," said Roosevelt. "Probably what makes the most sense is a right to self-defense when the government is incapable or unwilling to defend you ... It's easy to say that this is what the Second Amendment means with respect to state laws. Harder with respect to federal laws."
Beyond the ability of Americans to buy cannons and the chances of citizens fending off a tyrannical government, Biden also signaled support for banning firearms that shoot 9mm rounds, the most popular bullet caliber in the world, in his remarks on Monday.
The president discussed how some two decades ago he was participating in Senate hearings on gun control when the death rate was going up. He then recounted a purported conversation he had with a New York trauma doctor at the time: "I said, 'Why are they dying?' And they showed me x-rays. He said, 'A .22-caliber bullet will lodge in the lung, and we can probably get it out, may be able to get it, and save the life. A 9mm bullet blows the lung out of the body.'"
Breitbart News conducted a fact-check and determined Biden's statement that a 9mm round will blow an organ out of a body is false.
Biden then said there's "no rational basis for [high-caliber weapons] in terms of thinking about self-protection, hunting" and launched into his discussion about the Second Amendment.
"The Supreme Court said that arms that are 'in common use' cannot be prohibited," said Kopel. "9mm handguns are the most common type of handgun. So, a ban is plainly unconstitutional. And hypocritical. President Biden is protected 24/7 by Secret Service agents with 9mm Glocks."
The 9mm pistol accounted for well over half of all handguns produced in 2019, according to Shooting Industry magazine.
Biden's remarks came amid a push by Democrats to adopt stricter gun laws following the tragic mass shootings in Buffalo and Uvalde, Texas earlier this month.
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