Executive Power and Gun Control

January 1st, 2016

The President has announced that he's seeking to enact new controls without the cooperation or consent of Congress. I understand how this could be worrying on the surface.

The thing is, he really can't do that.  I've written about this before.  Whatever murky construct they may be, executive orders can't be used to enact or alter laws.  The chief executive doesn't have that power, and for very good reason.

It's unsettling that this President has repeatedly and publicly stated a desire to bypass our system of checks and balances.  Regarding economic relief in 2011, he said,

We can't wait for Congress to do its job. So where they won't act, I will.  We're going to look every single day to figure out what we can do without Congress.

Statements like that should be chilling to anyone, regardless of political affiliation.

With that said, we haven't seen the actual orders yet.  The main one rumored will redefine or tighten the definition of a "dealer" in firearms.  The existing definition under 18 U.S.C. § 921(a)(11)(A) is a bit ambiguous:

as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms

Principal objective and occasional sales can be hard things to clarify.  Are twenty guns a year occasional?  Ten?  Five?  One?

The President must know this will trigger a legal challenge, and I can't imagine the Supreme Court upholding it as constitutional.

So why is he doing it?  My best guess is that he wants to be seen as doing something near the end of his term.  A court challenge could take a couple of years, by which time he'll be out of office.  It's a cynical sort of political calculus, but it will appease the gun-control lobby in the short term, and he thinks he'll be fondly remembered for it.

The real historical lesson here should be his eagerness to abuse powers the Constitution never meant for him to have.

2 Comments
  1. GGWAG wrote, running Google Chrome 46.0.2490.82

    Executive orders are basically just rules that the chief executive officer makes for his direct subordinates to follow. And since the thing that POTUS is executive over is the entire branch of the federal govt which is tasked with implementing the laws, this necessarily is going to mean that carrying out these new rule changes means carrying them out while employees of the executive branch enforce laws, which means it won't be a rule change about how many pencils ATF can have at their desk, or what pants are approved for Casual Fridays at the office.

    Since ATF is under the executive branch's direct command, this then means that the chief executive can makes rules for how ATF does things. This includes what will and what won't be considered a legal private gun transfer by federal law. So let's say Obama issues a rule change (exec order) to ATF which has the effect of making it a federal crime for private individuals to sell guns to each other without performing a background check on the buyer. (with standard laundry list of exceptions)

    This would be seen by the gun rights side as basically a full nuclear first strike at the very heart of their freedoms, so they'll be on it like white on power, and within days their crack legal team will have their test case patsy booked into jail on felony gun trafficking charges for selling a gun to some sweet old lady who's had her house broken into 17 times. They'll probably make sure everybody involved in the test case is black too, just to pull in the whole civil rights thing. (This is also a nifty way to try to sell more guns to black people, which has been part of their sales and marketing strategy to push product here lately.)

    So the test case zips through the courts, practically creating a legal sonic boom as it hurtles towards the SCOTUS at Mach 20. how does SCOTUS decide it? Turns out it doesn't matter, because the Administration's strategy here wasn't to play for the win. They were playing for the publicity.

    My guess is that the courts probably WOULD strike down national UBC by EO. EO used directly to achieve something which had just recently failed in the Senate would almost certainly be seen as overreach on the POTUS's part. But the intense media focus on it would go on for months, and it would give every journo and talking head and idiotic pundit in the country plenty of time to come up to speed on what the current gun laws for sellers actually are, and this would translate into a massive amount of coverage and analysis of it, which in turn means that in a short period of time, most Americans would actually come to understand how the laws for private gun sales actually work and don't work.

    This is a crucial point here, because for all the relentless polling we all hear about on UBC, the media even now continues to bury the lede on this. Which is that research appears to indicate that roughly half of us seem to think that shady, private, no-questions-asked, no-first-names-exchanged gun sales between two guys in a parking lot, who found each other on the internet an hour earlier…are already illegal. but in most of the country, they're not, which is the whole point of UBC, Manchin Toomey, etc. but if people aren't clear on this, then they can't have an informed opinion on it one way or the other.

    And as long as so many of us think (erroneously) that a particular activity is already a punishable offense, it's hard to whip up support for outlawing it. But an EO, even one that crashes and burns in the courts, would likely eliminate this very widely held misconception about the currently legality of private gun sales. And once everybody knows where the law currently stands, many of the convenient arguments that the gun lobby and their friends in Congress use as a shield against passing UBC will melt away. And once THAT happens, everything will be nice and out in the open and opponents of the single most wildly popular gun control proposal will be faced with a stark choice: either pass the fucking thing, or lose your job to somebody who will. End of story, end of discussion. And end of the line for the lucrative world of the high-volume private gun flipper guy. Sorry 'bout that, fellers. I hear Walmart is hiring…

    Comment on January 2, 2016 @ 2:08 pm

  2. Erik wrote, running Google Chrome 47.0.2526.73 on Ubuntu Linux

    The above comment is a cut-and-paste from a thread on Reddit. The insults and profanity towards gun owners are part and parcel of this person's approach, which is why I'm leaving them intact.

    Comment on January 9, 2016 @ 9:55 am

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