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
“After all, the idea was the right to self-defence and one would need quite a lot of enemies to justify a machine gun.”
Unless your enemies have machine guns.
Treason was punished swiftly in 17th century Britain by drawing and quartering.
The President controverts and nullifies the Constitution, 2nd Amendment.
The President falsely purports to be a “natural born citizen.”
The President attempts to usurp power through “overreach.”
The President lies to the People regarding an anti-Muslim video after Benghazi.
The President abuses the power of government against the people through Lois Lerner and the IRS.
The Attorney General controverts and nullifies the Constitution, 1st Amendment.
Where is the Speaker of the House? What is the duty of the Speaker of the House?
The People are the Sovereign.
The Speaker of the House controls the constitutional enforcement tool.
The Senate will veto deployment of that constitutional enforcement tool at its peril –
possibly the nation’s peril.
Article 2, Section 4
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”
BEYOND THE PALE
Hi Mr. Turley, I am facing a defamation lawsuit at the hand of Debbie Schlussel. I need advice. Please contact me. Dennyjames@gmail.com I’m Dennis James. Thanks
If no,why can’t people be allowed a sixshooter and nothing more?
Obviously R H Stoll is unacquainted with and is ignorant about guns and probably other tools as well.
A gun is a tool. Tools have different applications. It would be like saying all you get is one screwdriver and it has to be a Phillips Head screwdriver. That’s it. That is your only tool. Deal with it.
Guns have different applications and uses….to limit people to one “six shooter is a ridiculous idea proposed by someone who probably has never seen a gun outside of a movie screen. Shot gun /= rifle /=hand gun. Semi automatic /= fully automatic.
If people want to discuss and propose laws about guns, it would be good to have some sort of actual…you know….knowledge first.
Your answer is somewhat incomplete,
Why is it not considered an infringement to exclude tanks, cannons and batleships? If within the context of the constitution it is possible to draw aline, the placement of that line is always arbitrary.
Nobdoy needs an arsenal for simple selfdefence in a civilized society (One begins to doubt about the latter).
I do quite well understand that a sixshooter does not serve as a hunting rifle, but we were talking about the fact that Americans seem to think they need automatics for self defence. Quite a ridiculousn idea in the rest of the world and not madse plausible in your post.
I do not ‘propose law guns’ but put a rather simple question on the table. The purpose, indeed, was obtaining knowledge.
Thank you so much.
We were supposed to have citizens militias, then this would all be moot. Communities would arm themselves much like police squads do today. If you put government in charge of security, they end up buying more weapons than we need and the Citizens can afford. Larger wealthier communities would have better arms then smaller less wealthy communities but they worked together in the American Revolution. The States and Communities would decide if we are to have nuclear weapons, not congress. See how it brings back grass roots activism and participation back into society and takes away federal central powers and controls. Look at how many militia groups formed and worked together within a structured voluntary association, the Continental Army. Remember Washington resigned as soon as the war was over and they placed a two year funding requirement during wartime. Back then they Federal Government had to get their money from the States and they States if all agreed should get the money from the Citizens to fight wars. Much more democratic than today where we have just 535 people controlling everything and the Judiciary rubber stamping them.
Although no perfect it surely beats the mess we’re in now. $600,400,000,000 annual defense budget? more the the next 11 countries combined. We surely do not need to have the size military we have today.
Why does a restriction on firearms necessarily involve a thread to the right to bear one (one!)?
Because the 2nd Amendment has the words….SHALL NOT BE INFRINGED.
Because the drip drip drip of incremental restrictions ultimately results in the banning of and the disarming of the law abiding citizenry, while the criminal elements and terrorist will still have arms and better ones that the pea shooters that we will be allowed, if any allowances.
Because self defense is an inalienable right.
Because….Molon Labe
Why does a restriction on firearms necessarily involve a thread to the right to bear one (one!)? Is one allowed to buy a cannon, or a fully armed tank? If no,why can’t people be allowed a sixshooter and nothing more? After all, the idea was the right to self-defence and one would need quite a lot of enemies to justify a machine gun.
I am a pacifist who does not believe in violence for any reason, even self defense
@ Joseph Jones
Fine. That is your choice and your prerogative. Your choices do not limit mine or affect my ability of self defense.
You can chose to curl up into a little fetal ball when the feces hits the oscillating mechanism. That is not my choice.
To each his own.
DutchJim:
You are expected to suffer the danger and the assault of murdering criminals who are armed, until the police come to save you from them. You are not allowed to defend yourself, that would be a crime.
I might add there is no legal obligation for the police to actually show up and protect you from anyone.
This is actually the law.
So to sum it up, it is your legal obligation to be unarmed and vulnerable to armed people who break their legal obligation not to be armed, and there is no legal obligation by the state to protect you from them — even though it is the very state that made you physically defenseless in the first place.
That is how it is actually supposed to be by intent and design of anti-gun activists, the way you are supposed to act, the condition you have to be in, and the protections you can you can expect, in order to be a law abiding citizen.
@Dust Bunny Queen
I appreciated everything you wrote about guns and living in a rural area until you got to this point: “They WANT to make you even more helpless and dependent. Obama and the liberal/progressives fear the citizenry more than they fear terrorism and they want to make us targets.”
I would assert that the current political polarization on gun control is an artifact of this moment in our history. Historically, people on the left have often supported the RKBA and people on the right have often supported gun control. In the state where I live, a very liberal Democratic governor spend a lot of political capital pushing through our concealed carry permit law.
OTOH, I can understand how a citizen living in a densely populated urban area and whose only experience with armed men is the gangbangers shooting up the place might have a different perspective than a rural citizen who grew up with guns. I don’t think their approach to gun control is effective, but I can understand why they are frightened. They already know they’re targets.
There is a little story I like to tell to put things in an historical context. It goes like this: Once upon a time there was a group of Negroes in an open carry state who educated themselves about their rights as citizens. (This was at a time when the descendents of the enslaved were still called Negroes when they weren’t being called something worse.) There was a city in that open carry state where the police had a long history of abusing and violating the rights of their Negro citizens. So, this group of Negroes who had educated themselves about their rights started openly carrying loaded weapons and following the police in this city. When the police tried to detain, question and search Negroes illegally, this group of armed men would loudly share their knowledge of their rights under our constitution with their fellow Negro citizens. As you can imagine, this caused quite a ruckus. Legislation to sharply restrict open carry was quickly written, passed by the legislature and signed by the governor.
The time was the sixties. The group of Negroes who had educated themselves about and asserted their rights as citizens was the Black Panthers. (They followed the law, keeping their firearms visible and not pointing them in a threatening manner.) The city with the abusive police was Oakland. The legislation was written and introduced by conservative Republican assemblyman Don Mulford (thus called the Mulford Act) and signed into law by the Republican governor at the time, a certain former actor named Ronald Reagan who told reporters he saw “no reason why on the street today a citizen should be carrying loaded weapons.”
So please don’t lecture me about liberals being frightened of an armed citizenry.
Tony Sidaway
“The New York Daily News has a controversial front page this morning…”
It’s probably not as controversial as you think. The continued paralysis in Congress on issues like this is probably what angers most voters.
Sure in exactly the same way as “paralysis” in congress angers voters on abortion. So if say Cruz wins the Presidency he can simply outlaw abortion providers receiving federal funds via Executive Order.
It’s a shame that there isn’t already a law barring people from shooting.. oh, my bad.
Laws can only punish behavior, never prevent it. They serve as a deterrent, and suicidal individuals are not easily deterred.
Police are armed because they derive that power from the people they serve. We delegate it to them. But by delegating that, we don’t give up our own right of self-protection.
Politicians: They never let a tragedy go to waste by not using it as an excuse to take away our civil rights.
Even if this gun show exception was the boogey man that somehow lead to a multitude of causes leading to this terrorist act (sorry Mr. President, it’s not a case of workplace violence like what you attributed to the Ft. Hood shootings) preventing such sales will not stop a determined terrorist.
Remember fourteen years ago terrorists were able acquire four large airliners and use them in a terrorist act. Do you believe the resolve to carry out such measures can be forestalled by a firearm purchase law? Rubbish.
Also, there is no failure for Congress to take address the measure. Congress debated this and it collectively DECIDED NOT to pass such legislation. It was not a failure to act. It was a decision made and Congress collectively arrived at a conclusion the president did not agree with. But, no worry the President can just go as he wants. And that is fine with his supporters. Fine at least until another president does something these supporters disagree with then it is an outrage.
Did closing the so called “gun show loophole” protect the public by preventing these terrorists from constructing the IEDs they carried or manufactured? These are considered Destructive Devices under Federal Law and are under analogous statutes under all the respective states. There is no legal IED Show at the county fairgrounds but these terrorists somehow made them.
Moreover, anybody with a rudimentary understanding of bombs can construct such a device. Politicians are deluding themselves into believing that banning the parts will prevent someone from constructing a bomb. Maybe they should focus instead on where the real threats to the US are and work to prevent these on a geopolitical basis instead of scapegoating the American public and our constitution as being the cause.
“I am a pacifist who does not believe in violence for any reason, even self defense.”
“The purpose of the 2nd Amendment, the benefit to society, is the ability to kill our enemies when the enemy is the King and his military.”
Joseph Jones,
Huh?
As a practicing Catholic, several times I read slowly and critically exactly what is the Catholic Church’s “Catechism” Re. war and self defense. The Catechism comprises teachings and doctrine of the Church that must be observed and obeyed, otherwise the disobedient are deemed to be “anathema.”
A good paraphrase, and you can find and read it yourself, taken from Aquinas’ so-called “Just War Theory.”
The first and most critical point is the first, which is:
War is allowed only when there is no other option.
I have pressed every single Catholic of any position of authority on this question, which is not addressed in the Catechism: IS THERE EVER ANY SITUATION IN WHICH THE CATECHISM PROHIBITS SURRENDER AS AN OPTION TO WAR?
To date, after thorough research, the answer appears to be “no.” That being the case, surrender always fulfills the “other option,” and war is thereby prohibited by the Church’s own doctrine. Every single qualifying point about war and how it must be reasonably and respectfully fought is null and void, simply because surrender eliminates the need for war every single time.
Whether the Pope or anyone other Catholic admits it or not, Catholic Catechism prohibits war. I abhor persons who claim otherwise, till they supply proof text otherwise contradicting my point herein.
Joseph Jones – which Catechism?
The reason armed militia ride buses in Israel is because Israel has coerced servitude (i.e. slavery) in that every citizen must serve in the military (I believe this includes women). Of course, the Rabbis are exempt. The ratio of Israeli soldiers is too high to transport them all in military vehicles.
In fact, when Palestinians had/have the chance, they blow up buses and night clubs because they are filled with just such people. Israel security appears first, removes the uniformed dead and injured, then the camera crews are allowed to video record the carnage, which looks like it’s all civilians.
Every dead Israeli child is one less Israeli soldier, at least from the Palestinian point of view, and in fact, it’s true, unless the child becomes a Rabbi, or is unfit for service.
I am a pacifist who does not believe in violence for any reason, even self defense.
Joseph Jones – you really should read Heinlein’s Starship Troopers.
The purpose of the 2nd Amendment, the benefit to society, is the ability to kill our enemies when the enemy is the King and his military. In today’s age, the analogy for the King’s military is the police and military who would/might take orders to illegally kill and imprison their innocent American neighbors.
Obama, Pelosi, Paul Ryan, SCOTUS, etc, none of these scum of the earth are under any threat of violence, at least not yet. To think that Hilary or any other US official cares about Americans dying like they did in San Bernardino is ludicrous beyond belief. POTUS and Hilary are personally responsible for thousands of needless American deaths. And frankly, by the math, prescription drugs and vehicle accidents cause infinitely more deaths than “terrorism” and guns.
Obama wants the guns gone to eliminate the threat to his cronies when the poop really hits the fans, when anarchy reigns, when Americans have taken all they can take, and they decide it’s payback time to the elites like him who created this mess. That’s Obama’s only concern, and no other. He could not care less about poor Americans blowing the brains out of little innocent American children. He cares about when the guns are pointed at him and his cronies.
ModernMiner, yes. The murderers did not follow our laws in California. The victims followed our laws, and were on their own. What am I, a law abiding citizen, supposed to do? I don’t want to be be a helpless victim. Again I ask, what am I supposed to do?
I suspect that as time goes on, civil unrest will increase, for any number of reasons. I don’t trust my government to help or “make things better”.
dutchjim – i become more and more concerned that Obama wants an unlimited 3rd term, hence limiting 2nd Amendment rights.
Well, Lard on Sunday and Krisco on Monday. Or is it spulled Crisco?
I like Dust Bunny Queen’s comment just recently posted.
In Israel a great number of people, perhaps all are militia, walk around or ride the bus or train, with guns.
I say: Send lawyers, guns and money! Lord get me out of this.
I live in a state that does require this type of checking for person to person sales. California.
Most people, like yourself will take the precaution of doing the transaction through a registered gun dealer. However, do you have any illusions that criminals, gang bangers will do the same. Not likely.
In addition there are many many instances of family transfers of guns that have never been registered because they were owned by generations of family members. Are they going to go to this trouble to pass Grandpa’s rifle to the Grandson or other generational transfers? Not hardly.
All the laws in the world are NEVER going to keep guns out of the hands of criminals. NEVER.