The President, touted by some as knowledgeable about our Constitution, acts as if he never heard of it sometimes. Now, the President and Vice-President are talking about enacting gun bans by executive order.
“The president is going go act,” Biden is quoted as saying. “There are executive orders, executive action that can be taken. We haven’t decided what that is yet, but we’re compiling it all.”
For the moment put aside the fact that the Second Amendment protects the right of each person to own and posses firearms and the ammunition that goes with it. Our Supreme Court resolved that issue in Heller. Obviously neither the President nor Congress can enact laws that violate the Second Amendment, anymore than they can enact laws that violate the First Amendment or the Fifth Amendment.
Let's focus on the supposed authority of the President to simply enact laws by the stroke of his pen. Article I Section I of the Constitution vests all legislative powers in Congress. All. None are given to the President or the Courts. All government acts need to be evaluated on whether they are consistent with our Constitution.
The executive branch has the Constitutional responsibility to execute the laws passed by Congress. It is well accepted that an executive order is not legislation nor can it be. An executive order is a directive that implements laws passed by Congress. The Constitution provides that the president "take care that the laws be faithfully executed." Article II, Section 3, Clause 5. Thus, executive orders can only be used to carry out the will of Congress. If we in Congress have not established the policy or authorization by law, the President can't do it unilaterally.
In order for the President to enact a gun ban by executive order, he would have to have such power given to him by Congress (we already established that the Constitution does not give him that power). Any unilateral action by the President must rely on either a constitutional authority or a statutory power from Congress. What laws exist for the President to enact gun bans by executive order? The Attorney General is authorized under the Gun Control Act (GCA) to regulate the import of firearms if it is “generally suitable" for or readily adaptable to sporting purpose. Thus, the Attorney General could use a “sporting purposes test” by which he can determine the types of firearms that can be imported into the United States. But this law does not authorize a gun ban or affect domestic manufacture and sales. So it provides no Congressional basis for Mr. Biden or the President to create a gun ban.
President Obama may point out that President Clinton issued an executive order (No. 12938) in 1994 where some Chinese firearms and ammunition were restricted from import. If that occurred, it would have been a serious overreach of the application of the authority set forth in that Executive Order, which President Clinton said at the time was being implemented under the International Economic Powers Act, the National Emergencies Act, and the Arms Export Control Act. As stated in the Order itself, "the proliferation of nuclear, biological, and chemical weapons (‘‘weapons of mass destruction’’) and of the means of delivering such weapons, constitutes an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States, and hereby declare a national emergency to deal with that threat." President Clinton Executive Order 12938 (1994). How that justification, based on large scale weapons of mass destruction, could be interpreted to include Chinese hand guns is unclear and problematic. Indeed, any fair reading of those laws would conclude they could not support a domestic gun ban.
The bottom line is that there is no Congressional authority enacted that would allow the President to take unilateral action to make it unlawful for individuals to transfer or possess a rifle, handgun or other gun or a large capacity ammunition feeding device. Nor is there any Constitutional power under Article II (the power of being the “Commander in Chief”) that allows this. If the President wants a gun ban or ammunition ban he has to first revise the Second Amendment, which is not easy, but possible. I would, of course, oppose that, as would most Americans. But that is at least a lawful and Constitutional means to achieve this.
Nor can the President do something Congress has prohibited. Thus, the President cannot reallocate ATF money and direct it to make a centralized database of federal firearms purchases because we prohibited that. Last year the House passed a continuing funding resolution (I would rather vote on budgets but the Senate refuses to pass a budget resolution and has not done so since April 2009), that became Public Law 112–55 (Nov. 18, 2011), that expressly prohibits the President from using any money "to disclose part or all of the contents of the Firearms Trace System database maintained by the National Trace Center of the Bureau of Alcohol, Tobacco, Firearms and Explosives or any information required to be kept by licensees" except for criminal investigations. In other words, the President is expressly prohibited from making a list of gun owners for purposes of then rounding up guns. This resolution contains other restrictions as well limiting the President's budget control over firearms policy.
Another law, the 2007 National Instant Criminal Background Check (NICS) Improvement Amendment Act, requires each federal agency to transfer records to the Attorney General if a record shows that someone is a prohibited firearm possessor under federal law. It is within the President's power to make sure his agencies are complying with that law and submitting records to the AG. But that is it. No more was authorized by Congress.
I, and many Americans, remain troubled by what we see are unconstitutional power grabs by the President. We have a Constitution and it requires that we follow it. Indeed, every public officer swears to do so. The Constitution sets our policy for the long term, and emotions of the day have to be subsumed to those principles. All of us share the grief of the criminal use of guns. We need to focus on the mentally ill who commit these crimes. We should not abandon our cultural and legal values, in place for over 200 years and created for good reason, because of a few mentally ill people. We need to remain vigilant and not let the President create bogus executive orders that have no Constitutional authority and no statutory authority.