Executive OrdersSteven Lieberman
On Thursday of last week, President Biden announced his “executive actions” on gun control. This is somewhat of a misnomer as he really did not issue any “executive actions”. The President… all presidents… are allowed to use executive actions when authorized by Congress during states of national emergency and when necessary to clarify executive actions for the purposes of enforcing laws passed by Congress.
The President is not authorized to issue executive actions that go beyond the scope of the legislative process, nor issue executive actions that are contrary to the laws passed by Congress.
There are a variety of reasons for this and, first and foremost, is the preservation of freedom. All laws are (or should be) interpreted in the narrowest fashion. A Congressperson may want to craft a draconian law that limits personal freedom tremendously. The only way that he or she can get that law passed through Congress is to negotiate with fellow legislators to water down that law to the most politically acceptable level possible. Every time a restriction is reduced, the net beneficiary is freedom.
When a non-legislative branch (in this case the Executive Branch) crafts what amounts to a law, it takes place outside of the deliberative legislative process and, as a result, “freedom” is put in peril. It is not what our Founders intended when they ratified the Constitution and, frankly, it cheapens the adherence to the law.
Complete lack of understanding or competency on the underlying subject matter is also detrimental to fealty to the law.
Both were on display last Thursday.
President Biden made a number of statements in his pre-launch remarks that were either patently false, or stated in such a way that literally made no sense. Even the New York Times called out his falsehoods… and if the New York Times criticizes your speech on gun control, you know you have a serious problem.
Gun owners also were left baffled. The gun control measures he is planning on implementing are odd, and his justifications were bizarre. Since criminals will not be taking his proposals seriously, it is left to law-abiding gun owners to feel the brunt of his proposals. Those gun owners are educated on the underlying subject matter, and the lack of coherence on the part of the administration jeopardizes not just these policies, but all aspects of the administration. Remember, gun owners are a politically diverse group. They are not lockstep Republicans. When supporters of the administration sees the failure of rationalism on one subject, they become suspect of others as well. The law is dependent on acquiescence on the part of those governed. When there is realization that the “emperor has no clothes”, the entire project is put in jeopardy.
After bloviating on deaths by firearms, telling us that the Second Amendment is not absolute, and a completely disingenuous reference to the liability mitigation of firearms manufacturers, he turned over the podium to Attorney General Merrick Garland.
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General Garland then highlighted five things the administration was going to peruse over the next couple of months:
Create a Database on Gun Trafficking
This is an interesting one. One could see how this might be construed as a potential registration of firearms. It is also in direct conflict with certain states that have statutes that specifically prohibit the registration of firearms. This would potentially create a Tenth Amendment issue. It also is terribly unclear how this data would actually bear a rational relationship to the underlying goal of reducing criminal access to firearms.
2) “Ghost Guns”
This appears to be expansive. There has been a tremendous amount of handwringing regarding what is referred to as “80%ers”. Essentially, 80%ers are those who own firearms that have only been manufactured to the 80% mark so as to avoid federal law regarding firearms transfers and serialization. The problem has always been a philosophical one. When does a gun become a gun? A chunk of aluminum is clearly not a gun. Ink marks showing where to begin the drilling process… is that enough? When a 3D gun is being printed, is the polymer sill in the cartridge a gun?
The administration now seems to be conflating the 80% argument and referencing the component parts that get attached to the receiver. General Garland spent most of his time referencing parts kits that allow owners of receivers to build out their firearms. Evidently, springs, tubes, and plastic are now going to be prohibited items?
3) Stabilizing Braces
The anti-gun crowd is terrified of short-barreled rifles. Their fear is somewhat odd since they never seem to be used by monsters to engage in the large-scale criminal attacks that grip our nation. Still, they look scary and that is enough. The problem is the arm braces, which can be used as a shouldering device. They were invented for the purposes of allowing people with disabilities to fire their AR pistols. The Americans with Disabilities Act came from Congress. The Administration now wants to limit products that were designed for, and are used by, people with disabilities. This is going to be a direct separation of powers challenge.
4) Model Red-Flag Laws
Sigh. This is so annoying. Look… we have always had a “red-flag” law. It was called a telephone. If you thought your friend, neighbor, or dude down the street was weird and a danger to himself or others, you would call the police. The police would then be empowered to “talk” to the suspect. If the police felt that he was dangerous, they could confiscate his guns and have him evaluated by a mental health professional. If they acted in a way that violated his 4th Amendment rights, they, and the municipality, could be on the hook financially. Red-flag laws simply remove the liability. They are not taking the guns away on their own accord…they are doing it pursuant to the legal right to do so by a third party. That third party is still subject to civil liability for its reporting if it was not made in good faith. The problem is for the victim who lost his guns, the malicious instigator might be judgment proof.
5) “Empower Communities”
This was spectacularly vague. The Administration wants to give away a billion dollars to local groups to combat gun violence. Ummm… okay… who are these groups? Does the NRA have a chance at getting access to $$$ for their Eddie Eagle program? Do shooting clubs have a chance at some cheddar to set up new shooter clinics and help instill gun safety? Or are these dollars exclusively for anti-gun groups?
Here is the funny thing. Some of these policies have a potential for Supreme Court review and might, depending on the theory, have original jurisdiction with the Supremes. The Democrats during the Trump administration were terrified that the Court was going to take up New York Rifle and Pistol v New York. Their fear was that a putative conservative court would finally articulate that the Second Amendment was, in fact, a “muscular” right and entitled to the same level of scrutiny as the First Amendment. The Supremes punted in that case when the Democrats started floating court packing.
As we inch closer to the midterms, court packing has fallen into disfavor. Put figuratively, that ship has sailed. These “executive actions” might be the vehicle that goes before the Court and gives us the decision we, in the gun community, have been waiting for.
Well, as they say…”only Nixon could go to China.”