President Obama is considering unilateral action regulating the personal possession of weapons. Today, he is meeting with Attorney General Loretta Lynch to discuss the matter, and review how he can utilize executive power to take action without the consent of Congress.
Both sides of the issue will weigh in on the expected proposals, but there will be an unfortunate lack of discussion on the only two truly relevant issues: One, will the restrictions actually deter those who would use weapons for bad purposes, or will the measures simply serve to deprive honest citizens of their Second Amendment rights? Second, can restrictions be emplaced in the absence of a full-fledged Constitutional Amendment?
One of the obstacles to a meaningful dialogue about the role of guns in modern society is the refusal of gun ownership opponents to discuss a key problem of regulation. Law-abiding citizens will obey such measures; those who would abuse weapons will not. It is evident that a perpetrator who will rob, rape, or kill will not be even remotely concerned with any gun possession or sale restrictions. On the other hand, many proponents of the retention and exercise of Second Amendment rights vehemently oppose any consideration of measures such as registration or gun show exemptions, appropriately fearful that such measures are the start of a slippery slope that eventually will lead to banning all weapons possession, abrogating one of the ten sections of the Bill of Rights.
Depending on the specifics of the President’s plan, his actions might be in defiance of the Second Amendment, which establishes the right to gun ownership, and a host of Supreme Court decisions which have affirmed that right for private citizens. Other jurisdictions, such as Chicago, have alleged that their restrictions didn’t violate the Second Amendment but merely provided common-sense restrictions. The effect, however, was a violation of the Bill of Rights.
(In 2010’s McDonald v. Chicago, the U.S. Supreme Court determined that the Second Amendment applies to the individual states. The Court held that the right of an individual to “keep and bear arms” protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The Supreme Court verdict rejected a lower court ruling that upheld a Chicago ordinance banning the possession of handguns as well as other gun regulations affecting rifles and shotguns.)
A unilateral action on the part of the White House could also violate the Administrative Procedure Act, which mandates that proposed actions be made available to the public for comment before becoming effective.
The White House most probably will describe its’ action as not restricting the Second Amendment, but as providing measures to close loopholes in areas such as registration and the ability to sell in certain types of forums. Opponents of the President will note that the Executive Branch of government does not have the authority to enact measures which are legislative in nature, and which could essentially “chill” or limit a Constitutional right.
One of the most recent decisions of the U.S. Supreme Court on point was the verdict in District of Columbia et al. v. Heller, which held that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
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Attempts to limit gun ownership through executive action also would present a conflict with the Constitutional doctrine of the separation of powers. Unilateral action by the President would face an overturn by the Supreme Court. As Article 1, Section 8, Clause 18 of the Constitution clearly notes, The Congress shall have Power To …make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. There is no provision granting the President the power to establish new laws, or revise existing ones, or to enact regulations or other measures which have the same effect as a law.
Even absent the Second Amendment, serious legal Constitutional questions could be argued against any federal prohibition against gun ownership. The Ninth Amendment states:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
A further limit on Washington’s ability to do so can be found in the Tenth Amendment:
“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.”
Clearly, the question of gun ownership is politically contentious. Just as clear, however, is the reality that the Constitutional and legal issues have already been settled. The U.S. Supreme Court has ruled on a number of occasions that citizens have a Second Amendment right which cannot be abrogated by anything less than a full-fledged Constitutional revision. Any action by the President (or Congress) to do so establishes an extremely dangerous precedent. Further, executive action which is, in essence, legislative in nature is a violation of the doctrine of separation of powers. The Executive Branch of the federal government is designed to administer, not make, law.
Critics of weapon ownership point to several high-profile mass shootings as a justification for their goal, but ignore common denominators such as untreated mental illness and terrorism that are the actual explanations for the heinous acts. Accidental deaths are also cited as a reason, but, as noted by Gun Facts “Firearm misuse causes only a small number of accidental deaths in the U.S. For example, compared to being accidentally killed by a firearm, you are: Five times more likely to burn to death; Five times more likely to drown; 17 times more likely to be poisoned; 17 times more likely to fall to your death; and 68 times more likely to die in an automobile accident.”