NPR has a series called "Off Script," where regular voters question the presidential candidates. On Wednesday's Morning Edition, they aired audio of an El Paso school teacher suggesting to Beto O' Rourke that his proposal to take away "assault weapons" from Americans through a "mandatory buyback" program won't pass constitutional muster, and will help the Republicans underline how Democrats oppose the Second Amendment.
NPR edited the first challenging question for length.
RUBEN SANDOVAL: I teach Texas government and also state and local government. [And I remember what you said on the stage as far the buyback program, the mandatory buyback program.]
The question I have is, how would you get around the Supreme Court rulings?
[I mean, you've got the D.C. vs Heller, which began to federalize or actually apply it to DC, the Second Amendment, and then you have McDonald vs. Chicago, which basically said that the Second Amendment is incorporated to all states. And so it would seem as though the courts would probably rule against something banning the AK-47s, the AR-15s.]
A mandatory buyback program, would seem to be deemed to be unconstitutional, and as late as 2016, the 4th Circuit Court of Appeals also included assault rifles to be part of the arms that are protected by the Second Amendment. How would you be able to get around that? [Martin also added to the teacher's point, but it was edited for length.]
O'ROURKE: Of course, the Constitution discriminates amongst weapons, and you have no lesser conservative light than former Supreme Court Justice Antonin Scalia, who made the case that the Second Amendment, like every constitutional guarantee and right, is not unlimited. You couldn't drive a tank, for example, down the street under the Second Amendment or shoulder a bazooka.
This answer ignores how Scalia actually ruled in these cases in Heller or McDonald. He ruled against the gun controllers. Scalia wrote for the majority in Heller in 2008.
To her credit, NPR anchor Michel Martin felt the question wasn't answered:
MARTIN: Congressman, with all due respect, I don't think that answers the question. I think everybody understands your passion about the issue. But the question is, with the conservative courts, not just the conservative Supreme Court, and conservative lower courts, which has been an intentional project of the Republicans in Congress for years, how do you get around the understanding...
O'ROURKE: What is the question? Is the question whether or not this is constitutional?
O'ROURKE: My answer is yes, and I just made the case.
O'Rourke insisted that Democrats "go for it" instead of fearing the courts would overturn their proposals. Sandoval thought a more gradual approach would be better:
SANDOVAL: I agree with you that the fear should not be the motivating factor on our public policy. But I guess what I wanted to add was perhaps maybe a more gradual approach with addressing the issue of assault rifles. For example, like, maybe moving the age up to 21 rather than 18 or...
MARTIN: Can I stop you, Ruben?
MARTIN: Why do you ask that? Are you worried that the proposals he's laid out just aren't realistic?
SANDOVAL: I feel that if -- taking that position would probably only embolden the other side to use it as a talking point to say that Democrats are going to destroy the Second Amendment. Democrats are coming for your guns and so on. So to me, a more gradual approach would be more effective to see...
MARTIN: OK. Let's have...
SANDOVAL: ...And shift the mood of the country in that direction.
MARTIN: Let's let him answer that.
O'Rourke answered: "I think whatever progress we can achieve, we should seize it the moment that we can. But I do think we have to define what the goal is and what we know will make America safer. And that's what I'm trying to do with our proposal."