President Joe Biden, in the wake of the Uvalde school shootings, addressed guns in general terms, although at some point his rhetoric focused on 9 mm handguns, probably one of the most popular civilian handguns for self-defense as well as the United States’ military-selected caliber.
Biden, describing the purpose of 9 mm weapons said, “. . . there’s simply no rational basis for it in terms of thinking about self-protection, hunting.” The president intimated that Americans should be restricted from owning these larger caliber handguns, and need only own .22 caliber guns.
No, these pistols are not hunting weapons, and the president’s frustration with those horrendous, indiscriminate killings and easy gun access is understandable. Reading the daily news in Baltimore describes gun carnage in frightening terms.
And while Biden would like to see restrictions imposed on possession of these handguns, there is simply no legal option to do so, other than making legal access more difficult for those classes of persons who are prohibited from gun possession under state or federal law, and more difficult for those who may legally possess a firearm.
The president, frustrated as he is, must abide by the Supreme Court’s 2008 decision in District of Columbia v. Heller, in which the court held that the Second Amendment protects an individual right to possess a firearm unconnected with military service, and to use that firearm for self-defense in the home. While many historians disagree with Justice Antonin Scalia’s interpretation of the Second Amendment, it is the law.
What’s more, the court held that this right to possess a firearm extends to the sorts of weapons that are in common use. This right to possess, or bear, firearms in common use, such as the ubiquitous 9 mm pistol, implies, as the court writes, the right to use these arms for self-defense. This, the court held, is a fundamental right.
Handguns as a category of firearms cannot be banned under Heller. Not one step alone will stop these killings, but there are a number of steps that can be taken, even if one at a time, that will prevent some shootings.
Handguns, Scalia wrote, are considered by Americans the quintessential self-defense weapon; a weapon often preferred for home defense for many reasons.
All handgun bullets, or projectiles, 9 mm, .22-caliber, .45-caliber, are fatal if vital organs or blood vessels are damaged, but in a self-defense situation, the objective is to stop the aggressor from pressing his attack before he can inflict damage. Pistols are not death rays, and their rounds have often failed to stop a fatal attack, even though the aggressor may have later succumbed to wounds inflicted by a defender.
There is no assurance that a pistol projectile will end the aggression like a round from a rifle or shotgun, but the heavier the projectile fired, measured against its speed, will equal energy and the more energy the better for the purpose of self-defense.
The .22-caliber round the president suggested was sufficient for defense is simply not. It, for example, generates 117 foot pounds of energy at the muzzle compared to the nearly 400 foot pounds of many 9 mm cartridges. Compared to the nearly 3,000 foot pounds of energy from a WW II 30-06 cartridge, the 9 mm’s energy is paltry; the .22’s almost non-existent and hardly sufficient for self-defense.
Biden’s frustrations are felt by many and no doubt they are very real. He feels helpless to stop these horrendous shootings. But the president should focus his efforts on the achievable – for example, working towards better data supplied to the FBI’s gun check NICS database. David Kelly who killed 26 people in a Texas church, should have been banned from buying a gun, but the Air Force failed to submit his name to NICS; there are thousands of those omissions by the Armed Forces.
Additionally, all sales of guns should be subject to background checks, not just sales through gun shops. And finally, red flag laws need to be enacted and followed, with resources devoted to investigation and compliance. And then, there is the mental health issue that seems to be ignored.
With half a billion guns in circulation, it may be too late to “control” guns, but it does not help to rail against things that the law does not allow to be changed when there are things that can be done to make us all a bit safer.
Jim Astrachan is a partner at Goodell, DeVries, Leech & Dann, LLP. The views expressed are his own.