NRA-ILA | Kamala Harris and the Democratic Party Platform: Threats to the Second Amendment

With the release of the 2024 Democratic Party Platform, the national Democratic Party has once again confirmed its extreme anti-gun positions. Most concerning, just like their presidential candidate, the Democratic Party’s platform doesn’t respect the Second Amendment and the individual right to keep and bear arms that it protects.

In fact, noticeably absent from the platform is any recognition of the Second Amendment. The omission is even more conspicuous given that not too long ago the Democratic Party Platform at least acknowledged the Second Amendment right.

2012:

We recognize that the individual right to bear arms is an important part of the American tradition, and we will preserve Americans’ Second Amendment right to own and use firearms.

2008:

We recognize that the right to bear arms is an important part of the American tradition, and we will preserve Americans’ Second Amendment right to own and use firearms.

2004:

We will protect Americans’ Second Amendment right to own firearms…

Some might dismiss the previous platform language as little more than lip service to concerned gun owners. However, there have also been practical changes to the party’s conduct.

Consider that in 2010 NRA endorsed 63 Democrats for Congress. As Second Amendment Attorney and Scholar David Kopel pointed out at the time, 81 House Democrats and 19 Senate Democrats signed onto an amicus brief filed in the U.S. Supreme Court case McDonald v. Chicago supporting incorporation of the individual rights interpretation of the Second Amendment to the states.

The 2024 platform’s complete disregard for the Second Amendment right is in line with Democratic presidential nominee Kamala Harris’s position. Harris doesn’t believe the Second Amendment protects an individual right whatsoever.

In 2008, the U.S. Supreme Court decided the case District of Columbia v. Heller. The case concerned a challenge to Washington, D.C.’s total ban on handgun ownership. In overruling the ban, the Court made clear that the Second Amendment protects an individual right to keep and bear arms for lawful purposes, including self-defense.

The individual right to keep and bear arms protected by the Second Amendment was later affirmed by the Supreme Court in McDonald v. Chicago (2010), which made clear that state and local governments may not infringe upon the right. The Supreme Court again affirmed the individual Second Amendment right in New York State Rifle & Pistol Association v. Bruen (2022), which made clear the Right-to-Carry a firearm for self-defense extends outside the home.

If it was up to Harris, Americans would not enjoy an individual right to keep and bear arms.

In 2008, Harris was the District Attorney of San Francisco. In this capacity, Harris endorsed an amicus curiae brief of district attorneys in support of the District of Columbia and its handgun ban in the Heller case. In a January 2008 press release touting the brief, the San Francisco District Attorney’s office explained that Harris was “leading” this effort to support the unconstitutional gun ban.

Advocating against the individual right to keep and bear arms, the brief argued,

courts have consistently sustained criminal firearms laws against Second Amendment challenges by holding that, inter alia, (i) the Second Amendment provides only a militia-related right to bear arms, (ii) the Second Amendment does not apply to legislation passed by state or local governments,

According to the document, the Second Amendment does not protect an individual right, but rather, the lower court in Heller “create[d]” this right. The brief stated,

The lower court’s decision, however, creates a broad private right to possess any firearm that is a “lineal descendant” of a founding era weapon and that is in “common use” with a “military application” today.

Anticipating the Supreme Court’s move in the next landmark Second Amendment case (McDonald), Harris’s brief reiterated that the Second Amendment right to keep and bear arms should not be incorporated to the states. Had this thinking been adopted, state and local governments would be empowered to curtail or even extinguish gun rights without restraint. State and local governments would have been able to bar their residents from owning any firearms whatsoever.

Of course, the 91-page 2024 Democratic Party Platform made plenty of room for the party’s gun control ambitions. These mostly consisted of items off the national Democrats’ longtime gun control wishlist.

The platform declared that Democrats would criminalize the private transfer of firearms by requiring every firearm transaction to take place pursuant to a government background check. There is a plank calling for a ban on commonly-owned semiautomatic firearms and their magazines. Further, the platform supports funneling more taxpayer loot to the federal government’s gun control patronage network through the Centers for Disease Control.

As for relatively newer proposed infringements, there are two items of note.

The platform called for “a national red flag law.” Further details were not given. “Red flag law” is shorthand for a scheme that typically enables the government to confiscate a person’s firearms and extinguish their Second Amendment rights without prior notice and a hearing for the person to rebut the allegations against them (due process).

The U.S. Supreme Court has made clear that the federal government cannot commandeer states to cooperate in such a scheme (Printz v. U.S. (1997)). Therefore, do Democratic policymakers contemplate federal judges or some dubious administrative court issuing “red flag” gun confiscation orders? Who will be responsible for carrying out the confiscation orders? The ATF, FBI, or U.S. Marshall Service? Do the Democrats envision federal agents roaming the countryside forcibly entering homes to confiscate guns from unsuspecting citizens who haven’t been convicted of any crime?

The platform also stated, “We will require safe storage for guns.” Set aside the Second Amendment for a moment. This item reveals that Democratic policymakers disregard any limits the U.S. Constitution imposes on federal power.

The U.S. Constitution grants discrete powers to the federal government. The Tenth Amendment to the U.S. Constitution makes clear, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Of course, the U.S. Constitution does not grant the federal government the power to regulate firearms. The way in which supporters of an unlimited federal government get around this, to regulate firearms and countless other items and behavior, is by adopting an extremely broad interpretation of interstate commerce.

Article I Section 8 of the U.S. Constitution provides, “The Congress shall have Power… To regulate Commerce… among the several States.” This, according to statists, allows the federal government to reach into anything that may touch upon interstate commerce even in the most attenuated manner.

In the 1990s the U.S. Supreme Court took steps to reign in the unrestrained interpretation of interstate commerce (U.S. v. Lopez (1995)). It’s hard to imagine how the current U.S. Supreme Court would endorse the idea that how Americans arrange personal property within their own homes is interstate commerce.

If the federal government can mandate where and how someone must store a firearm in their own home, then there are effectively no limits on federal authority, aside from whatever weight the federal courts are willing to grant the Bill of Rights. The federal government could tell you what color to paint your living room or regulate how far you must sit from your TV.

NRA members and other gun rights activists must work to inform their family, friends, neighbors, and other freedom-minded individuals about the dangers Harris poses to the Second Amendment, their way of life, and their personal property.