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Gun Control by Executive Order? Are there limits to what the president can accomplish this way?
National Review ^ | 01/16/2013 | Scott Coffina

Posted on 01/16/2013 7:15:51 AM PST by SeekAndFind

The horrific recent mass murder of 26 children and adults at Sandy Hook Elementary School predictably has reignited the gun-control debate in this country. Over the past month, the Obama administration has focused primarily on guns in its initial response to the Newtown shooting. The task force led by Vice President Joe Biden has met mostly with groups either in favor of or opposed to greater restrictions on guns and ammunition. Facing strong political opposition in Congress from both parties, Vice President Biden and President Barack Obama each have suggested publicly that the president will act by executive order to restrict guns.

This trial balloon for unilateral action by the president raises the question, “Can he do that?” The answer is, it depends how far he tries to go.

Executive orders are not constitutionally sanctioned or prohibited, but once signed, they have the force of law. Presidents have utilized them to drive policy within the executive branch since the dawn of the republic. In some cases, presidents have acted quite aggressively through executive orders. President Lincoln suspended the writ of habeas corpus during the Civil War; President Roosevelt established internment camps during World War II; and President Truman mandated equal treatment of all members of the armed forces — all through executive orders. Significantly, all three of these actions were rooted in the president’s constitutional authority as commander-in-chief of the armed forces, in the midst of national emergencies.

Presidents acting by executive order have been challenged in court, most notably in Youngstown Sheet & Tube Co. v. Sawyer (1952). In Youngstown Sheet & Tube, the Court held that President Truman had exceeded his authority by directing the seizure of steel mills to avert a strike during the Korean War, stating that “the president’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker.” Thus, the majority found that Truman had strayed too far into the province of the legislature, violating the separation-of-powers doctrine.

But it was Justice Robert Jackson’s concurrence that established the three-part framework for considering executive authority going forward. First, there are the areas of express or implied constitutional or statutory presidential authority, where the president’s authority for executive action is at its height. Second, there are areas where Congress has not legislated, and where the line of authority between the president and the Congress is vague or overlapping. Finally, there are areas where presidential action is “incompatible with the express or implied will of Congress,” where the president’s authority is at its lowest.

The analytical framework for executive action established by Justice Jackson thus provides a basis to consider how executive action by President Obama to restrict guns would fare in a legal challenge.

It is unlikely that the president would move to confiscate or prohibit handguns through executive action, or even through legislation, for that matter. The Second Amendment is alive and well. The U.S. Supreme Court has reaffirmed the right of individuals to possess firearms for self-defense and other traditionally lawful purposes twice in the past five years. And to be clear, President Obama has never suggested he would pursue this course of action.

On the other end of the spectrum, pursuant to his constitutional mandate to “take Care that the Laws be faithfully executed,” the president clearly has the authority to direct the Department of Justice to prioritize more comprehensive enforcement of the gun laws already on the books or to enhance tracking of the paperwork related to the sale and registration of guns. Presidents George H. W. Bush and Bill Clinton actually implemented gun-control measures by executive orders pursuant to this authority, banning the importation of certain assault weapons under existing gun-control laws.

The key question is how much President Obama might try to accomplish by executive action in the gray areas. It is possible that he can make background checks for gun buyers mandated by the Brady Bill more effective and efficient and also facilitate better sharing of mental-health information (if he is willing to take on the ACLU in doing so) by executive action. However, if he goes further and attempts to ban assault weapons or high-capacity ammunition magazines unilaterally, he will be on shaky legal ground. Although the Heller Court stated that the right to possess a firearm does not include the right to possess any kind of weapon for any purpose, it is unclear whether a blanket ban on assault weapons and high-capacity magazines (even if duly passed by Congress) would survive a Second Amendment challenge (it may depend, in part, on how such weapons were defined).

Moreover, an executive order banning assault weapons falls within the legislative authority of Congress, and thus implicates the separation-of-powers doctrine. Indeed, Congress has acted in this area, passing a ban on assault weapons and high-capacity magazines in 1994, and — equally significant — also has chosen not to act since the ban expired in 2004. Should the president attempt to supersede Congress’s clear legislative prerogative in this area by executive order, one would expect the courts, under the rationale of Youngstown Sheet & Tube, to strike his measure down.

As important, if the president decides to bypass the legislative process and act unilaterally to limit guns, he will be courting a political disaster. The NRA is not some fringe group of irrational gun nuts seeking to take advantage of the Sandy Hook tragedy to drum up members and donations, as the mainstream media and even the president have implied. Rather, it represents the serious concerns of millions of law-abiding Americans, from both parties, who value their Second Amendment right to gun ownership for self-defense, sport, and protection against disorder or government tyranny, as the Framers originally intended. The president once derisively talked about “bitter” small-town residents’ “cling[ing] to guns or religion.” Well, nothing would make people cling harder to their guns than an effort to ban them by executive fiat. And the courts, most likely, would support them.

The Washington Post recently released a poll showing that a small majority of Americans are more likely to support gun-control measures in the wake of Newtown. If the president taps into that underlying support and is able to approach the matter with a spirit of compromise — and as part of a larger package that must also include serious proposals to better identify and compassionately treat mentally ill individuals who might be prone to violence, and efforts to have the entertainment industry tone down the indiscriminate killing without consequence in video games, television, and movies — perhaps Washington will surprise us and some reasonable gun-control measure could pass. (Whether it would be effective or not is a different question.) Thus, the president should not throw up his hands and conclude that a legislative effort is too difficult to pursue. The political process really is the only way — banning guns by executive order would be unnecessarily provocative and legally unsustainable, and it may not even prevent the next Newtown, which, after all, is supposed to be the goal.

— Scott A. Coffina is a former associate counsel to President George W. Bush and a former assistant United States attorney. He currently is a partner at Drinker Biddle & Reath.


TOPICS: Constitution/Conservatism; Culture/Society; Front Page News; Government
KEYWORDS: banglist; bhofascism; democrats; donttreadonme; govtabuse; guncontrol; guns; obama; secondamendment; tyranny; waronliberty; youwillnotdisarmus

1 posted on 01/16/2013 7:16:02 AM PST by SeekAndFind
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To: SeekAndFind
Any governor of any state who bows to any Executive Order on gun control should be removed from office immediately, by any means necessary.
2 posted on 01/16/2013 7:17:40 AM PST by E. Pluribus Unum (TYRANNY: When the people fear the politicians. LIBERTY: When the politicians fear the people.)
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To: SeekAndFind

Seems all of this weeks discussion is silly - lots of discussion on what people will say or do. If not the President, it is Lance Armstrong and his show tomorrow.

I am all for waiting to see what is actually said then debate.


3 posted on 01/16/2013 7:19:30 AM PST by edcoil (Manage your own lawsuit: www.jurisdictionary.com?refercode=KK0012)
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To: SeekAndFind

Some Liberal co-workers have argued with me this morning on this line:

The first amendment says “Congress shall make no law...” Thus, the second amendment restriction on infringement only applies to the Legislative branch. Therefore, executive orders requiring confiscation would be perfectly legal.

I mean... wow. I couldn’t even counter it. The stupidity was so great as to be blinding.


4 posted on 01/16/2013 7:21:39 AM PST by rarestia (It's time to water the Tree of Liberty.)
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To: SeekAndFind
Moreover, an executive order banning assault weapons falls within the legislative authority of Congress, ...

Actually, the Constitution says it DOESN'T.

5 posted on 01/16/2013 7:23:02 AM PST by mvpel (Michael Pelletier)
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To: SeekAndFind

Since we no longer worry about that flawed document, the constitution, and Obama is worshiped by the media, there is almost no limit to his powers.

(Not to mention the electorate is under educated, and chronically distracted).


6 posted on 01/16/2013 7:23:26 AM PST by brownsfan (Behold, the power of government cheese.)
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To: SeekAndFind
Well, let's put it this way . . . who's going to stop the sock-puppet's handlers from doing whatever they want. The guy's an idiot, but his handlers will do whatever they want.

You don't think Mr. Weepy (Boner) is going to do anything, do you?

7 posted on 01/16/2013 7:23:36 AM PST by laweeks
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To: SeekAndFind

Truth is the only way to stop these commies is to unelect Democrats.We have to start State by state starting with the low hand=ging fruit!!


8 posted on 01/16/2013 7:25:28 AM PST by ontap
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To: rarestia

RE: The first amendment says “Congress shall make no law...”

Since this guy wants to abolish all context, then to use his argument, Congress should make no law. PERIOD.

Which means Obamacare should not be law because Congress made it. :)


9 posted on 01/16/2013 7:28:47 AM PST by SeekAndFind
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To: rarestia
Just explain Article I Section(s) one (Should only take this one, but lowly collectivists are vastly incoherent) as well as eight, Article II Section 3, and Separations of Powers
10 posted on 01/16/2013 7:38:02 AM PST by rollo tomasi (Working hard to pay for deadbeats and corrupt politicians.)
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To: rarestia

Liberal=insane


11 posted on 01/16/2013 7:40:13 AM PST by LibLieSlayer (FROM MY COLD, DEAD HANDS!)
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To: mvpel

What’s the Constitution say about illegal Mexican “immigrants” and foreigners becoming President of the United States?

I’m not saying that Obama is an illegal alien or even born outside the country but he has failed to prove that he’s eligible to be POTUS. In fact, red flags popped up when he posted a FAKE birth certificate on the White House website.

We cannot pick and choose which parts of the US Constitution are important and which parts are not.

As far as I’m concerned the man is likely as American as you and me, but there was a reason he refused to acknowledge the questions about his eligibility and it was likely nothing to do about anything he’s hiding and ALL about snubbing the US Constitution. He was testing the waters as to how much the American people really care about the Constitution.

Unfortunately, only Alan Keyes and the Birthers passed this test. Only they have a right to be concerned about Obama’s trampling on gun rights and the rest of the US Constitution.

The real lesson: We cannot be picking and choosing which parts of the US Constitution are enforced and which parts are not. When we do that, we’re just as guilty as the Obamanists who are ripping it to shreds.


12 posted on 01/16/2013 7:47:03 AM PST by tsowellfan
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To: rarestia

Say to them “So, in your oppinion there is no reason for congress to exist at all and you’d be happy if obama was king.” Then tell them you wouldn’t be happy so they should move to .........


13 posted on 01/16/2013 7:47:20 AM PST by Terry Mross (People who hate me read my posts and get angry. Yet they can't look away. hee hee)
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To: rarestia

Say to them “So, in your oppinion there is no reason for congress to exist at all and you’d be happy if obama was king.” Then tell them you wouldn’t be happy so they should move to .........


14 posted on 01/16/2013 7:51:27 AM PST by Terry Mross (People who hate me read my posts and get angry. Yet they can't look away. hee hee)
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To: SeekAndFind

He will do anything he wants to do. Who will prevent him? The part of the American public with its head up its a$$ that voted for him? The wimpy Republicans?


15 posted on 01/16/2013 7:51:38 AM PST by I want the USA back
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To: All
POLITICAL THEATER OF THE ABSURD Obama wants extensive background checks and registration for gun ownership - but anybody who wants to, can walk in and vote---legal or not. (And forget extensive background checks for presidential candidates, too.)

Obama and his crew of Chicago mobsters can't find 10 million illegal aliens hiding in plain sight, yet they plan to round up 300+ million firearms.

How dumb is that?

==================================================

Publishing names/addresses of citizens with legal gun permits is only the beginning.

Americans demand to know the names/addresses of federal/state/and local politicans with gun permits.

And who on the govt payroll----- at every level of govt----- has a permit to own a gun.

==================================================

THE PLUSPERFECT REASON WHY THE CITIZENRY NEEDS TO BE ARMED

“We’ve got to have a civilian national security force (which answers to me) that’s just as powerful, just as strong, just as well-funded as the military.” - candidate Barack Obama on his plans for America.

16 posted on 01/16/2013 7:53:29 AM PST by Liz
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To: rarestia
Ask your Lib co-workers the following questions:

Do individuals have a right to be protected from violence by others?

Do you know that in 2005 the Supreme Court ruled that police do not have a duty to protect citizens? There also have been other cases with the same result, which is as a US citizen you are on your own for protection.

http://www.nytimes.com/2005/06/28/politics/28scotus.html?_r=0

Given these two points, ask them how do you plan to protect yourself from someone who is big, faster, stronger and may be armed with any sort of weapon from a base ball bat to a knife to an axe to a gun?

17 posted on 01/16/2013 8:05:50 AM PST by Lockbox
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To: SeekAndFind
Fu.. Barry and his illegal, unconstitutional EOs.
They are not law, I will not comply.


Come And Get Me Coppers!

18 posted on 01/16/2013 8:14:06 AM PST by Condor51 (Si vis pacem, para bellum.)
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To: SeekAndFind
it may not even prevent the next Newtown

What a maroon! Laws don't ever stop behavior; they only create penalties for behavior...

19 posted on 01/16/2013 8:26:05 AM PST by antidisestablishment (Our people perish through lack of wisdom, but they are content in their ignorance.)
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To: LibLieSlayer
Oh how I agree! Say one wanted to commit another school shooting and we've now legislated to have a cop at every school (which unions are jumping at this thought). I have to go to schools to vote so that tells you how often I am there. Well, the cops or security patrol have a blinking yellow light on their car for safety....so why not just hide until after they pass and burst into a school with your intent? Would it not be better for Administrative and Teachers to have concealed hand guns and be ready for any incident?? Criminals have criminal minds, not bleeding heart liberal ones and that is why so many libs are victims in everything...they do not think, they feel- and that is usually in public, not in private conversations with them!!!
20 posted on 01/16/2013 8:33:10 AM PST by YouGoTexasGirl
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To: SeekAndFind

I don’t know why we even engage in this debate. The 2A is a natural law, a God given right existing before the Constitution! These friggin socialist libtard pukes want to debate this they can take it up with God, in person, once the talk has ended, and they learn first hand the consequences of infringement upon this right from God fearing Patriots!


21 posted on 01/16/2013 8:44:58 AM PST by Carthego delenda est
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To: Carthego delenda est

little barry bastard boy is squelching those dangerous clingers with their guns and Bibles don’tchaknow.


22 posted on 01/16/2013 8:52:05 AM PST by MHGinTN (Being deceived can be cured.)
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To: YouGoTexasGirl

Amen!

LLS


23 posted on 01/16/2013 9:18:30 AM PST by LibLieSlayer (FROM MY COLD, DEAD HANDS!)
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To: SeekAndFind; All

With the stroke of a pen...Poof...

Well, I guess he and his minions made this easy...


24 posted on 01/16/2013 9:34:17 AM PST by stevie_d_64 (It's not the color of one's skin that offends people...it's how thin it is.)
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To: Lockbox
"Given these two points, ask them how do you plan to protect yourself from someone who is big, faster, stronger and may be armed with any sort of weapon from a base ball bat to a knife to an axe to a gun?"

-This is why I think women lose the most.


25 posted on 01/16/2013 9:53:19 AM PST by Democrats hate too much
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To: Liz

There may be an issue with the civilian national security force “HS” move for closer ties to local law enforcement. They get to know the local law and find leverage to coerce toeing the line; and, figure out whom won’t play ball and disarm/ disband those in a surprise action. Adding several hundred reserve deputies with plan of action could make this proposition somewhat more sticky.


26 posted on 01/16/2013 2:02:01 PM PST by Ozark Tom
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To: rarestia
“Congress shall make no law...”

The low information cannot possible know that the Administration - Article 2 - is not authorized to create LAWS.
27 posted on 01/16/2013 4:29:03 PM PST by Cheerio (Barry Hussein Soetoro-0bama=The Complete Destruction of American Capitalism)
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To: brownsfan
(Not to mention the electorate is under educated, and chronically distracted). AND is overly propagandized by a corrupt 4th Estate.
28 posted on 01/16/2013 4:32:33 PM PST by Cheerio (Barry Hussein Soetoro-0bama=The Complete Destruction of American Capitalism)
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To: SeekAndFind
Obama certainly CANNOT confiscate legally owned guns in your home.

From District of Columbia v. Heller, in which DC tried to get the Federal District Court of Appeals judgement [for Heller] overturned:

... In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home."

"We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

We affirm the judgment of the Court of Appeals.

29 posted on 01/16/2013 7:46:05 PM PST by Lmo56 (If ya wanna run with the big dawgs - ya gotta learn to piss in the tall grass ...)
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