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.
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.