Can Barack Obama Ban Guns By Executive Order?


This week Vice President Joe Biden alluded to Barack Obama possibly using executive order to impose gun control. Biden said this during a meeting surrounded by several gun control groups and gun violence victims. The question on many people's minds is, "Can this actually happen?"

First, let's understand what an executive order actually is. It is supposed to be an order delivered by the President to those under his authority, sort of like the CEO of a company giving direction to those under him. According to the National Archives:

Executive orders are official documents, numbered consecutively, through which the President of the United States manages the operations of the Federal Government.

The text of Executive orders appears in the daily Federal Register as each Executive order is signed by the President and received by the Office of the Federal Register. The text of Executive orders beginning with Executive Order 7316 of March 13, 1936, also appears in the sequential editions of Title 3 of the Code of Federal Regulations (CFR).

Robert Longley at About.com also confirms this is how executive orders work and adds, "While they do bypass the U.S. Congress and the standard legislative law making process, no part of an executive order may direct the agencies to conduct illegal or unconstitutional activities.

Executive orders are not to be used to bypass the legislative branch, but they are to be used simply under the executive branch. In other words they can be used to direct executive agencies on implementing Congressional approved legislation. Typically these are used for the purpose of:

1. Operational management of the executive branch
2. Operational management of federal agencies or officials
3. To carry out statutory or constitutional presidential responsibilities

At least that is what they are supposed to be used for. The Constitutional authority for presidential executive orders are normally cited to be found in Article II, Section 1 of the U.S. Constitution, which reads, "The executive power shall be vested in a president of the United States of America," and Article II, Section 3 which states, "The President shall take care that the laws be faithfully executed..."

So there is authority granted to the President and that has been recognized even by our first President, George Washington, who signed his first executive order in 1789. He was not alone. Many of the founders, who became President, such as John Adams, James Madison, and James Monroe issued one executive order each. While President Franklin D. Roosevelt issued 3,522!

So the question we have to deal with is "Is it possible that Barack Obama could sign an executive order to impose gun control?" The answer is, "Yes, it is possible he could sign such an executive order." The issue though, is whether or not such an executive order would be lawful and upheld by the Congress or the Supreme Court. Congress may pass a law that alters an executive order, and they can be declared unconstitutional and vacated by the Supreme Court. A recent Congressional response to an executive order can be found here.

One wonders, after the ruling from the Supreme Court in 2012 on the Affordable Care Act (Obamacare), how they would rule on an executive order regarding the Second Amendment. Fox News' 19's Ben Swann says they would probably not allow it to stand.

Swann asks, "Is the President attempting to issue an executive order on gun control, violating Second Amendment rights?"

The example would be that if Obama signed an executive order to ban what he calls "assault weapons" or rifles with high capacity magazines, that order would have to go before the Supreme Court. The issue before the Court would then be for them to decide what weapons Americans have rights to. We can see a glimpse into how they have ruled in the past in at least two cases that have dealt with this issue (not the executive order).

The most recent Supreme Court decision was District of Columbia vs. Heller. The legal contention was whether banning handguns in Washington D.C. was a violation of the Second Amendment. In that case, the Court ruled that it was a violation. Justice Antonin Scalia wrote in the majority opinion:

"the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

All of that sounds great. However, within the opinion, Scalia also referenced the 1939 Supreme Court case United States vs. Miller, writing:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

But wait, he does clarify what he means in the following paragraph:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Some may argue that AR-15's and Ak-47's are dangerous, but aren't all weapons? After all, isn't that part of the definition of a weapon, that it's dangerous in the hands of those that use them? Could this apply to a tank or a rocket propelled grenade launcher (RPG)? Perhaps, though I disagree that they should be banned, but from Justice Scalia's writings it does not apply to rifles, such as the AR-15.

How about "unusual?" Well, considering that millions of gun owners own semi-automatic rifles, which the Left refers to as "assault weapons," and that they are even sold at your local Wal-Mart hardly makes them unusual.

Should Obama seek to push through something along these lines, there is no doubt that it would be a long, tedious process in court. With that said, let me interject that if conditions were made right, then perhaps the Supreme Court and even the Congress might just go along with it. What do I mean? Given that FDR's Executive Order 9066 was the order that directed the internment of more than 120,000 Japanese Americans, many of whom were U.S. citizens, we should not be asleep at the wheel on this issue. In the heightened state of acting on emotion following the attack on Pearl Harbor, it seems this was a clear violation of the Constitution.

Might I suggest that those who are unfamiliar with what took place at that time visit a archived photos of what took place here and here.

This is why so many people oppose the National Defense Authorization Act and it is why citizens must always be alert and sober to what happens around them.

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Comments

comments

  • Rogoraeck

    Are you the "We the People" & are you going to be afraid of the schwarza manzer in the WH?
    What's happening to you people? Are you on some kind of pharma med? Drinking Fluoridated/lithium intoxicated water? Are you gelded?

  • Drdetroitdanchap

    A God given RIGHT cannot be legislated away. Any "law" that tries to do so is ILLEGITIMATE. If they "legislate" away your RIGHT to Keep and Bear ARMS ..... they will also "legislate" away your RIGHT to LIFE.

  • http://pulse.yahoo.com/_IBEXEABVDVJOBRX2VH4QPAO3JA APpitstop1234

    I have an offer for o'bungo-----Have the democrat MENDENAZ babysit your kids, then we can send back home and support her in the
    white House. he he he-----make it happen husain----

  • http://pulse.yahoo.com/_IBEXEABVDVJOBRX2VH4QPAO3JA APpitstop1234

    I kind'a hope o'bungo does sign such an order, why you ask? Because we could immediately have our revolution on him, its coming sooner or later anyway. Then our next pres could abolish all of o'bungo's so-called orders and ship him back to_______?

  • LGreen311

    quite simple is this question to answer, NO he can not! Executive Orders are only binding upon the Executive Branch of government and are in NO WAY the "Law of the Land"! If Obama wishes to continue with this agenda I am very afraid that it is certainly going to be the tipping point at which the people will go into insurrection mode against TYRANNY, which is what any EO attempting to circumvent the Constitution, not to mention the ENTIRE Legislative Process of OUR nation would ultimately be. This however doesn't mean that Hussein Obama is not going to attempt this very thing, and then run to the U.N. for 'peace keepers' to quell the insurrection that his TYRANNY will have caused in the first place. If only the Legislative Branch had some guts they would IMPEACH this usurper for the offenses he has already committed, I mean by Obama's own account of his life he clearly makes the case that he is NO 'Natural Born Citizen' as REQUIRED for the office he is busily USURPING! How can we still have a supposed Head of the DOJ whom is in CONTEMPT of Congress, but yet is still our nations 'chief law enforcement officer'???? Any normal citizen found in contempt is promptly placed in jail until such time as they are ready to comply, but Obama and Company BELIEVE 'They' are ABOVE THE LAW, I pray they get a RUDE AWAKENING and SOON!

  • gnafuasusual

    No, the president can't ban guns with executive order - must be voted and that is why turn-coat Reid is trying to kill the filibuster. With filibuster ability, Congress can turn that exec order around and Reid and his minions want to please the president because they know their jobs and lives are at risk if they don't comply. Reid once was a decent Senator/politician. That is why he was voted back into office so many times because he did so much for Nevada! Some say. Now, he has become the devil's advocate and afraid he will lose his position if he doesn't pull some shenanigans to pass the gun ban and all the other crap that's in that exec. order.

  • PISSED OFF PATRIOT

    he doesn't have the balls to try it, the founders in their awesome intelligence knew there would be an Obama in the future so they LOCKED the second amendment in stone. and wether Obama likes or dislikes guns I could care less.

  • Foxy

    America was brought forth in the name of God. One Nation Under God but now the devil under the guise of the Anti-christ now walks the earth and his name is Barak Obama. How else can one explain what is happening? We must in the name of God cast out this devil even if by force if necessary before he destroys Gods people and the land they dwell upon. There is a fight coming. We need to form Militia's to fight this new King George (Obama) and his army. Be prepared.To arms, To arms dear fellow Patriot's!! Where is our George Washington. Where are our Generals to lead us? Where??

  • bhudda

    Our leader as they call him should not be allowed to handle a fire arm as he is crazier than any fanatic shooter out there . An hour on a shrinks couch and they would institutionalize him .

  • bhudda

    Sounds like a Supreme Court visit would benefit the gun society more than the wimpy scared of my shadow croud that thinks in anyones hands they are not quailfied to own nor opperate these weapons . I personally thought the M-16 was one of the best rifles I ever fired in both accuracy and dependability .

  • http://www.facebook.com/people/Billy-Mullins/1613683982 Billy Mullins

    Dear Leader can do anything he can get away with. The author assumes (assumption: the first and worst of all errors) that the Supreme Court would actually elect to hear the case in the first place. Considering their complete reticence to date to consider the issue of Dear Leader's citizenship (i.e. whether or not he is, in fact, a "natural born citizen") I see no reason to assume they would be in any greater hurry to hear such a matter as whether Dear Leader had exceeded his authority. Also, considering the current regime's sterling record on complying with judicial orders (if memory serves they have yet to obey even one) I see no reason to expect that they would actually obey any order given. PLUS considering that it takes YEARS for a case to even GET to that level, they would have ample time to accomplish their ends before SCOTUS put the kibosh on their plans.

    Remember this simple principle. NOTHING is illegal unless you are successfully prosecuted for it.

  • MadamXAnon

    Refuse the RFID mark. I cover mine so it won't be read and wrapped my passport in foil. Crazy? I thought so some days ago, but changed my mind. It is no longer Republican or Democrat. Our guns will not save us, only the blood of the lamb.

  • MadamXAnon

    Along with the NDAA, stomping on our 2nd Amendment rights and giving carte blanche to homosexuals to marry, now we have RFID compulsory coming. Wake up sheeple. The mark of the beast is here.

  • MadamXAnon

    When Congress passed the NDAA and Obama signed it into law, we were screwed. Nothing else that these thieves and liars will do is suprising to me after they have the right to detain us without charge or warrant. Wake up sheeple!!!

  • Roy Patterson

    Obama can write executive on Guns just like he did giving millions of illegals green cards. My bet is if he writes these orders, just like the green card order, no one will stop him. We don't have a two party system any more, at the national level. The last presidental election was a set up election (just like 2008) to make sure Obama got re-elected.

  • Fred

    As I recall, the SCOTUS Miller decision of 1939 rested upon the court's belief that short-barreled shotguns were NOT military issue. If my recollection is correct, It appears to me that the court may have been mistaken in that belief. Recall that in the "War To End All Wars"(World War 1) pump adtion 12 ga short barreled shotguns, plus thier accessories(canvass, shoulder shell bag, and brass shells, containing buckshot) were issued to US units involved in trench warfare. these, so-called, "Trench Brooms" were mighty effective, resulting in German leafletting of Allied trenches to the effect that US prisoners who carried either the shotguns OR the accessories would be treated as War Criminals.

  • Charles R. Kienast

    Charles R. Kienast9:13pm Jan 14
    Everyone - please remember that what is stated below is true!!! Executive Orders are mainly directions/orders to the president's executive branches Homeland Security, etc on how he/she wants them to carry out their functions. But even then, they cannot counterdict or supercede existing laws, constitutional amendments, erc. It is important that all Americans know and understand this. County sheriffs, state officials are not bound by executive orders from the president. If f a president wants them to have the authority of legal laws, he/she has too get them approved by Congress.

    So the answer is no - the president can not ban guns but must follow existing laws and amendments -- including the 2nd Amendment. He will try but they are not enforceable unless local governments along with federal agents try to force them on people -- which can lead to an out rebellion if the populace resists - which they have the right to do in this case as the order is not binding on them.
    Charles R. Kienast

    http://photos-h.ak.fbcdn.net/hphotos-ak-ash4/408524_416213578460879_1807553215_a.jpg
    photos-h.ak.fbcdn.net

  • shag

    He may be able to get this passed......it all changes in a time of war.....where he can activate a whole bunch of executive orders just sitting there.....we the people must be careful with this guy who occupies the Whitehouse....

  • citizenrights

    This is not about confiscation of guns by making them illegal or that the socialist and American communists in Washington DC believe the Citizens will not fight for there rights under the second Amendment. It is about a revolution. In fact the socialist and American communist are drooling over the prospect the American Citizens will fight and rebel.

    It is quite possible after The vice president is his usual outrageous self in the brief talks with the gun lobbies without any resolve. There will be a ban by executive order to stop the manufacturing and sales of certain automatic and semiautomatic hand guns and rifles and the ammunition and attachments for civilian use. This order will not be one of constitution order, but of civil; under federal statutes and codes; Attached and reenacted under the 1968 gun control act. There is also a strong possibility that there will be a order of a state of emergency declared under FEMA. Because of so many illegal guns being in the possession of the Citizenry after the order is made. A third order being made to surrender the Arms or Guns or face criminal prosecution as warranted. In this there may even be some form of compensation for the guns being surrendered. "Guns for cash". This was already tried in two States in the Union with a positive reaction and most guns being surrendered in those townships where the trial took place. Florida was one of the States.

    The best scenario for this to become a reality and actually happen. Is for these orders to be made. Is after the first quarter of this year when the country begins a very fast down ward slid into another very deep recessionary period. Because of the out come of the congresses ability to keep on spending money with no restraint. It is quite possible the reality of selling the guns off to the government in order to put food on the table will be the norm in the majority of Citizens minds.

    But if it is not the norm. Remember the idea of the politically correct;” is never let a crisis go to waste“. In this case it will be the threat of a so called civil war, a rebellion, In reality a revolution. Giving this bunch of thugs the right to use force! Military force! Who do you think that may be? Who ever holds our debts. Many we thought were are friends will ultimately become our adversaries upon our own land. You could say it will be a three hundred degree circle from 1776 to the present. This is just a supposition and an opinion.

  • citizenrights

    The new method’s of the politically correct, the American communists. Is to infer that anyone desiring to own or carry a gun or even have such thoughts, are deranged and mentally ill. The very people who released all the mentally ill and retarded people on to the streets of America in the 1950’s an early 1960’s in there reasoning that these people have rights also under the United States Constitution. Now have decided that only certain rights will be granted, if declared mentally ill, according to who? What appointed judge?
    That also all members of the NRA and The republican party are now being lead by the Ku Klux Klan a deranged organization bent on the destruction of the black people and destruction of America. All gun toting KKK and white Supremacist members control the Tea party and republican party and the NRA. That these organizations are the reason for a division being created in the society of the American people. That all people who support gun rights are deranged people. This is what is now being parroted in the press and media daily and in the radical left fringe militant part of the United States Government, A crescendo of hysteria. Screeching out there tripe, half truths and lies.

    This is the old campaign with a new but old twist to it. Of the politically correct delusional American communist’s. Who are the ones desiring supreme power over the people as tyrants in tyranny in government and who are waging a war on the United States Constitution and on the God given rights of the American Citizens.

    Lets turn the coin around and perceive it this way for a change. All people found to be practicing and believing socialistic and definitely communist or fascist. Should be declared severely and emotionally depressed and have paranoid psychotic insecurity episodes, alternating in and out of reality. To the point that they have deep seeded resentment of those with liberty and freedom, who the communist or socialist feels must be controlled. The only way the communist and or socialist can be dealt with since they are very disturbed people completely out of touch with reality, these type people must lose there rights to vote, Or to write anything for public knowledge, or ever hold public office, they must be bared from teaching any thing to anyone. Or face being committed to a asylum of mental reconditioning for a minimum of 10 years with hard labor. The socialist and or communist also must be required to report at all times to a director of freedom and liberty twice a week. For counseling. The communist and or socialist must apply for a special permit to be a citizen in the country and have this party card and or permit on them at all times and must present it on request by any regular Citizen. What kind of hysteria will they commit themselves to. To the suggestion that this could be considered in a act of law governing them and there attitudes.

    It would be interesting to know if it could be made public how many democrats and republicans in government are profiting through stocks and bonds on gun sales from the fear of gun control legislation.

    What would the American Citizen prior to the so called civil war of 1862 would say if such legislation would have been proposed? The south might have won the war for sure?