The 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