Can Biden issue an executive order to ban certain weapons?

In the wake of two mass shootings in the past week, President Joe Biden called on Congress Tuesday to pass legislation to strengthen background checks on those buying weapons and to reimpose a ban on “assault weapons.”

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In addition to calling on Congress for action, Biden is considering an executive order addressing gun control, according to White House press secretary Jen Psaki.

Psaki stopped short of specifying the action Biden might take.

“We are considering a range of levers, including working through legislation, including executive action,” Psaki told reporters on Air Force One during a flight to Ohio. “That has been under discussion and will continue to be under discussion.”

Biden’s comments came following two mass shootings in six days. Eighteen people were killed in the shootings around Atlanta and in a grocery store in Boulder, Colorado.

“I don’t need to wait another minute, let alone an hour, to take common-sense steps that will save lives in the future. And to urge my colleagues in the House and Senate to act. We can ban assault weapons and high-capacity magazines in this country once again,” Biden said.

Biden helped to negotiate the bill in 1994 that outlawed the manufacture, transfer and possession of 19 types of military-style weapons. In addition, certain semi-automatic weapons with at least two enhancements from a list included in the legislation were outlawed.

That ban was not renewed by Congress and expired in 2004 after a 10-year sunset provision.

With an evenly divided Senate, chances are slim of passing any legislation that would ban the purchase of either guns or high-capacity magazines. Legislation aimed at regulating the sale of weapons would need at least 60 votes in the Senate to pass.

What senators could soon consider are two bills passed by the U.S. House. The House bills address expanding background checks on those purchasing guns, and closing the so-called Charleston loophole, which says that if the FBI cannot complete a check on a person purchasing a gun within three days, the gun seller must be allowed to sell the gun to the person trying to buy it.

Sen. Patrick J. Toomey, R-Pa., said Sunday that Senate Republicans could support expanded background checks for guns sales, but toed the party line on the root causes of gun violence, The Washington Post reported.

“I’m not a dangerous person,” Toomey told “Meet the Press. “My focus has always been, make it more difficult for people that we all agree shouldn’t have firearms, make it more difficult for them to get firearms. That is violent criminals, the dangerously mentally ill. That’s what we should focus on.”

Sen. Joe Manchin, D-W.Va., told reporters on Tuesday he does not support the House bills, according to Reuters.

Manchin, along with Sen. Pat Toomey, R-Pa., has introduced a bill that would allow private sales of firearms without a background check.

With such a difficult path to gun control legislation in Congress, could Biden issue an executive order to tighten background checks or ban the sale of certain weapons?

Psaki said of Biden that “he as vice president was leading the effort on determining executive actions that could be taken on gun safety measures, it’s something that he has worked on, he’s passionate about, he feels personally connected to. But there’s an ongoing process and I think we feel we have to work on multiple channels at the same time.”

Meanwhile, Sen. Lindsey Graham, R-S.C., told “Fox News Sunday” that Biden’s call to enact a ban on assault weapons would never come close to gaining bipartisan support.

“It won’t get 50 votes, much less 60,” Graham predicted, adding a repeated Republican talking point to illustrate his stance.

“I own an AR-15. If there’s a natural disaster in South Carolina where the cops can’t protect my neighborhood, my house will be the last one that the gang will come to because I can defend myself,” Graham said.

It’s believed that Biden may be considering executive orders that would require background checks for “ghost guns,” or guns that can be manufactured at home from kits, and a requirement that local law enforcement authorities be notified if someone fails an FBI background check to buy a gun from a registered dealer, according to a story from Politico.

What Biden cannot do is issue an executive order that prevents people from purchasing a gun. The right of Americans to own a gun is outlined in the Second Amendment to the U.S. Constitution. The U.S. Supreme Court has also ruled that individuals have a right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home.