President Obama Reportedly Preparing Unilateral Gun Control Regulation As Response To Recent Shootings

SseudqLThe New York Daily News has a controversial front page this morning blasting politicians and others who are offering prayers while opposing to take steps to curtail gun access in this country in the wake of the latest massacre in California. It is the same message sent by President Barack Obama who appears ready to use executive authority to restrict gun sales at gun shows. The problem with calls for such action is that Congress has declined to order such changes — raising yet another potential conflict over executive overreach in our system. Moreover, the right to own firearms is now recognized as an individual right under the Second Amendment, limiting the extent to which gun ownership can be meaningfully curtailed. Absent a constitutional amendment, many of the calls for banning gun ownership would fail as unconstitutional.

The action to be taken the Administration seems somewhat artificial as a response to the shooting in san Bernadino. Officials are saying that President Obama will close the so-called gun show loophole that allows people to buy guns each year without a background check. However, the police have confirmed that at least two of the weapons used by Syed Farook, 28, and his wife Tashfeen Malik, 27, were lawfully purchased. Thus, the response is like denouncing forest fires by passing a new law combating kitchen fires. It reminds one of the old story about a man who comes upon another man in the dark on his knees looking for something under a street lamp. “What did you lose?” he asked the stranger. “My wedding ring,” he answered. Sympathetic, the man joined the stranger on his knees and looked for almost an hour until he asked if the man was sure that he dropped it here. “Oh, no,” the stranger admitted, “I lost it across the street but the light is better here.”

This “loophole” is originally a creature of legislation not regulation. It has long been debated in Congress. Bills to close the loophole were introduced in seven consecutive Congresses. This legislation references gaps in legislation that goes back to the 1968 Gun Control Act, which GCA mandated Federal Firearms Licenses for those “engaged in the business” of selling firearms. Private individuals were not covered, a major political accommodation. Then there was the 1986, Firearm Owners Protection Act (FOPA), which relaxed controls of the Gun Control Act. Then in 1993, Congress enacted the Brady Handgun Violence Prevention Act, amending the Gun Control Act of 1968 to institute federal background checks on all firearm purchasers who buy from federally licensed dealers. The silence on private firearms transactions would seem a direct outgrowth of the past accommodation given private owners/sellers. The Administration can certainly argue that the silence created an ambiguity warranted deference to the federal agencies, but the record of legislation — including the repeated requests to close the gap — belie any claim of this was truly an omission or oversight of Congress.

There are certainly many good arguments to support closing this loophole, but it is something that must be done in conjunction with Congress. Indeed, President Obama has formally asked for such legislation and failed to succeed in Congress. That was three years ago. As with health care, immigration, and other fields, the President seems intent now on “going it alone” after Congress refused to give him what he demands. The question is not really one about gun control but constitutional authority. No president can become a government unto himself. He has to show leadership and either forge a consensus in Congress or seek to change the make up of Congress. There is no third option — no license to go it alone in our system.

Federal law requires gun stores and other regular sellers to get federal licenses and conduct background checks. This did not stop Farook or other criminals. However, it is certainly true that thousands of guns are sold in those private sales every year and gun shows create a massive loophole in that system. There is a legitimate debate to occur here, but the place for that debate is in Congress.

Whatever measures are sought in the aftermath of this shooting, one has to keep in mind that there are limits on the range of options after the rulings in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010). Last year, United States District Court Judge Frederick Scullin Jr. handed down a ruling in Palmer v. District of Columbia that overturned the city’s total ban on residents on carrying firearms outside their home. The Court has signaled that it will accept reasonable limitations on gun ownership, but has remained unclear on the scope of such laws. What is clear is that bans on gun ownership (which many are calling for this month) would not be seriously considered in light of Heller. That does not mean that certain types of weapons might not be limited or curtailed but the suggestion that we can “remove guns from society” is fanciful absent a constitutional amendment.

Closing the gun show loophole would seem likely to pass constitutional muster under the guidelines of Heller, so long as it is drafted narrowly and carefully. However, if the President again takes unilateral action, it will add a separation of powers challenge to the Second Amendment challenge. There is no evidence of intent to give the President such authority. This has long been a divine issue and Congress clearly considered closing this loophole and declined to do so. If legislation were written, it would need to be evaluated on how to define certain gun sales and private transactions. That is the type of balancing and tailoring that occurs in congressional committee.

There is a great desire to act in the wake of this tragedy, but our actions must occur within a carefully calibrated system established by the Framers under the separation of powers.

Source: LA Times

135 thoughts on “President Obama Reportedly Preparing Unilateral Gun Control Regulation As Response To Recent Shootings”

  1. Mike Pouraryan

    “I read your column on the Gallup Poll and this where you call for him to work with Congress.”

    He’s got his pen an his paper so he doesn’t need Congress, remember? Besides, the entire system works only for usurpers and thugs.

  2. Paul C. ” I heard that a raw onion was in the podium.”

    That’s one way to spontaneously tear up over a drill where no one got hurt. So many people are being aroused from their media induced soporific (Is that better than saying ‘waking up’?) that I wonder when the tipping point will be and what will be the result of that.

  3. Paul; Is there a solution for fake crying? As you state the question so generally, I would have to say NO.

    1. Hildegard – I need to restate the question. Is there is reason for the fake crying? I heard that a raw onion was in the podium.

  4. I read your column on the Gallup Poll and this where you call for him to work with Congress. If you have a Congress that is not interested in Governing (and just passed another Obamacare rejection bill), what is there to do?

  5. stevegroen

    “I can’t believe you actually watched the president talk about ::ahem:: smart guns (is he clueless or what?!) or that you allot any time to any of the soulless gools trying to take his job. What a waste of time!”

    LOL When I entered my bosses house yesterday the big screen TV was on blasting Obama’s image and voice into my vulnerable consciousnesses. I left the room but there was no way to escape “the voice”. She was rapt with attention, hanging on his every word and when it was FINALLY over she said, “I don’t know what your opinion is but I for one am glad that President Obama is taking this action!!”.

    So I told her as politely as I could that she’s an ignorant fool who believes a KNOWN serial liar and is getting the WRONG half of the story from CNN, also KNOWN liars. Then the plumber walked in and that was the end of it. I refuse to stay silent otherwise people will either think I agree with them or have no opinion.

    I found a number of good videos on Youtube exposing the fake crying. It was pure entertainment and the videos were very short thankfully.

  6. HSR writes, “You know the old joke. The little boy said my mommy told me I have one of these and you don’t. Well, the little girl said, my mommy told me with one of these and can get all of those I want. Freud was [spot] on.”

    I feel like Dustin Hoffman in Little Big Man when I say, “That is a historical fact.”

  7. Bruce; “as soon as he gives up his armed bodyguards I’ll give up my right to carry a gun.”

  8. Nick; “when Obama was presented w/ a strategy to blow up the oil wells he nixed it because of environmental concerns.” Very funny. The United States IS ISIS.
    ‪Top 5 Censored News Stories From 2015‬

  9. stevegroen: ” It seems to me that the incident in San Bernardino’s Inland Regional Center calls for more firearms, not fewer. If someone in that building had been armed and had the courage and skill, maybe a few less of the dead and injured might not be.”

    This attitude is every Globalists worst nightmare. Americans are simply not going to go quietly into the goodnight. As brainwashed as many are, our history is simply not long enough for the brainwashing to take a deep enough hold. When the sale of guns skyrockets after every one of these fake events, Obama breaks out in hives, or fake tears. Notice how it was only after he applied his left finger to his left eye that only his left eye teared up after speaking of the ’26 dead’ in Newtown Connecticut.

    Way too many of us have been working overtime to raise doubts and spread the truth about that event that was nothing but drill. “Please check in.” And if you don’t know what that references you have some catching up to do.

    1. I can’t believe you actually watched the president talk about ::ahem:: smart guns (is he clueless or what?!) or that you allot any time to any of the soulless gools trying to take his job. What a waste of time!

      Keep calm and carry on.

      Kind regards.

  10. I’m just curious. When Obama care was passed into law, the house, senate the supreme court and the executive branch were made exempt from this law. Will they also be exempt from any new gun legislation?

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