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
It’s a little frightening when I read and see the Feds anticipated actions and what comes to mind is the short story by A.E. van Vogt, “The Weapon Shop”.
I bet I was no more than 13 or 14 when I read the story. Originally it just seemed like a really great story. But over time I started to get the actual meaning.
Don’t people find it a bit amusing how the disease of antisemitism seems incurable. Even on this Blog there are a few posters who see two devout Muslims kill 14 Americans, maybe horribly maim many others, and destroy scores of lives all in the name of Islam and conclude, “its the Jews’ fault”.
We’ve already seen crime respond to rates of gun ownership. Here, most people own firearms. Break-ins when people are home are unheard of. What is more common is breaking into outbuildings or cars and stealing tools or other items. But the houses are untouched while people are home, because criminals often have an instinct for self preservation.
Think about it. If you were a criminal, whose house would you break into, the one with all the NRA stickers all over it, or the one with the Peace and No Gun Zone signs? Although criminals do make stupid decisions when they break the law in the first place, they do still try to stay alive.
A gun is a very serious responsibility, but it is a tool. It is neither good nor evil. That depends on the user.
There is a practical way of immediately reducing the number of reported violent crimes in the U.S.
Adopt the U.K. policy of “no criming”, and those U.S. crime statistics will look much better.
Ninian
…the article that you cited was written in 1999. It was blown out of the water in 2008 with the Heller decision.
Ninian ….you need to read about the decision in District of Columbia v. Heller.
This landmark decision addresses the individual’s right to gun ownership……NOT about some right to gun ownership as part of a collective.
Police Chiefs Across the US Admit Armed Citizens, Not Cops, Best Deterrent Against Terrorism
http://thefreethoughtproject.com/police-chiefs-admit-armed-citizens-cops-deterrent-terrorism/?utm_source=getresponse&utm_medium=email&utm_campaign=savoymatt&utm_content=The+Free+Thought+Project+Newsletter
Tin Ear, LOL! “Obama Guns” would be a great way to bust that pompous, prissy guy’s balls. Assuming he has any.
As I skim the comments posted, one wonders if anybody has read the Declaration of Independence?
I find back door attempts at gun control, like limiting ammunition or magazine size, to be anti-constitutional. Don’t play coy at removing all guns from law abiding citizens, by chipping away at it. Just be honest and see if you can pass it on its merits.
People wonder why in the world would we ever want an armed citizenry. Why would people ever need a firearm in their homes?
And then we see cosmopolitan Paris torn apart by bullets and bombs.
We just had a terrorist attack kill 14. Why would anyone assume these attacks will taper off or stop? As long as we educate our women, have a secular government, equal rights, then we will be a target for anti-West muslim extremists like ISIS.
So since we can assume this will keep happening, many people are going to want the ability to defend themselves just as a basic responsibility of being a human being.
What happens after a large natural disaster right here in the US? Looting. What happens after protests? Riots and burning and looting and mayhem. Then there are stalkers, criminals, as well as the time honored tradition of hunting. We’ve had multiple major riots here in CA. Fun stuff. And the cops were too overwhelmed to do much about it.
If people want to disarm the public then call it what it is, a Constitutional Amendment. Be honest about it and try to get it passed. Don’t call it “commons sense gun control.” Because CA already has very strict gun control. It would not have prevented previously law abiding, radicalized people from buying a gun, or a pressure cooker, or material for a bomb. It doesn’t stop terrorists, criminals, or mad men who break the law. The law is not a bubble that flies out and envelops someone, preventing them from doing harm. It says, “don’t do this or you will go to jail.”
Very well-stated, Karen. +1
As Professor Turley remarked, it would take a Constitutional Amendment in order to control all guns. California already has some of the strictest gun control laws in the country. It is almost impossible to get a Concealed Carry License. Realistically, if someone has not broken the law yet, or fall under a mental health restriction, they can legally buy a firearm. There is literally no way to prevent a formerly law abiding citizen from becoming a homicidal maniac. That extremist couple also had a houseful of bombs, too, that they were manufacturing in the home where their precious 6 month old child lived. There was nothing to prevent them from making those, either.
I do agree with background checks being required on all gun transfers, private, gun shows, or retail. However, it is quite obvious that criminals do not follow the law, by definition. Otherwise, laws against murder would produce no more murders. There is zero way to prevent Bob from selling his gun to Steve, or any other black market sale.
I have rather a unique experience on firearms. On the one hand, I believe the life of my family was saved when my father prevented someone from breaking down our door during the night when the family was home. All he had to do was chamber a round where the man could hear it. And then he got a very sincere apology and retreat.
On the other hand, I have experienced negative situations with firearms, twice . Both times the people involved were legally barred from owning firearms. They broke the law to get them. I was luckily not hurt either time. The law did not prevent them from actually obtaining a weapon. It is law abiding citizens that obey the law. Nonetheless, I don’t want to make it any easier for criminals, which is why I support instant databases for criminals and mental health. Unfortunately, the vast majority of states do not report mental health data to the database, rendering it ineffective. Of course, the last time I checked into the issue was several years ago. One would hope that the states have improved reporting, in light of the series of mentally insane people going off their psychotropic drugs and shooting people (or running them over with their cars, stabbing, etc.)
We cannot guarantee that no one will buy a car and then drink and drive, drive negligently, leave their kid or pup in a hot car, engage in road rage, or run over a significant other on purpose. If the requirement to allow car ownership was that they would never be used in a crime, ever, then no one would have a car.
Firearm ownership is similar. They can be used for crime, self defense, or hunting, and their ownership is constitutionally protected. Considering an armed citizen stopped a mass shooting in a mall not too long ago, I believe that gun ownership may actually rise after terrorist attacks. One must also recall the armed citizens who pinned down the Clock Tower Shooter in Texas, preventing mass slaughter. The thought of being helpless while someone throws a bomb at you or shoots at you is grim. I watched a video clip of the inside of a Paris cafe after the terrorist sprayed it with bullets. Then he pointed it at two women cowering under a table outside. Amazingly, his gun jammed, so they escaped. I kept thinking, if this had happened at some cliche road house bar, the barkeep would have taken out his shotgun and protected his customers.
Whether people believe they should personally own a firearm, or no one should be allowed to, it would take a constitutional amendment to remove all guns. That would devolve us back to the law of the club, where the strong prey upon the weak, who have zero hope of defending themselves if the police can’t teleport in time to save them. My first firearm was a gift from a cop ex boyfriend who informed me that in all his years of service, he had never once arrived in time to prevent a violent crime from happening. When someone breaks into your home, he’s going to have plenty of time to do what he came there to do. You will not have time to call the police, explain what’s happening, give your location, wait for them to arrive, assess the situation, and then move in. It literally takes too much time. That is why most cops arm their families while they’re away.
Sure there are people who live in nice neighborhoods, with low crime, who’ve never been in danger. Those people may feel that since they have never needed a firearm, no one else should need one. They lack the empathy to understand the myriad conditions in which a private citizen may need to protect him or herself. Or use it for subsistence hunting. The Constitution ensures that they cannot make that decision for others.
Extremism is growing. And clearly we are suffering a problem with violently mentally ill people. And these people inevitably choose soft targets, where they are guaranteed not to encounter anyone armed who could fight back. They’re cowards. Don’t increase those soft targets.
http://www.buzzfeed.com/RYANHATESTHIS/10-POTENTIAL-MASS-SHOOTINGS-THAT-WERE-STOPPED-BY-SOMEONE-WIT#.ejX9JLA6ew
Before 1968 you could order a rifle from a catalog and have it delivered to your house. Using the Kennedy assignation they passed laws that they then said would curb killings….but of course that wasn’t the case.
Lawful owners just had to jump through more hoops to get their guns.
In Illinois there is NO loophole, we have like Commiefornia & New York have some of the strictest gun laws in the country. Legally a person can not even TOUCH a gun in Illinois without a FOID card. (But you can still go to the black market in Chicago & buy weapons illegally.)
The only thing MORE laws are gonna do is make it even harder for people to stay legal. It’s almost as if they want to make more criminals out of people just wanting to defend themselves.
>Unless your enemies have machine guns.
Indeed, so if you remove all machine guns from the civilian sfere, that is solved. Unless you mean you want armed revolt against the authorities.
Either the society takes responsibility for determining whose gun rights ‘shall not be infringed’ or it doesn’t. As it is now, the NRA and special interest oligarchs have the US suspended between a responsible scrutinizing of who should have these rights and simply allowing anyone who wants any weapon to have access to whatever they want.
Full background checks for everyone and anyone, no gun access for those on government no fly lists or other lists of people who might endanger the public, no gun access to criminals or those with criminal records, no gun access to anyone exhibiting or recorded having exhibited mental problems, no gun access without an extensive education as to the potential dangers and proper handling of guns, manslaughter charges to anyone responsible for a child gaining access to a gun who goes on to kill someone, etc.
This is in complete accordance with the 2nd amendment.
Trump should occupy the White House and issue a declaration that he, as the new President, replacing the
unconstitutional ineligible non-“natural born citizen” imposter, has accomplished this by “executive action”
and “overreach” as a “tipping point,” retroactively, if the legal/constitutional experts deem it necessary.
He could order the Supreme Court to cavalierly commingle the definitions of a few, salient words for public
consumption to facilitate this glorious act.
Then Trump could put America on autopilot and let the Preamble, Constitution and Bill of Rights, circa 1789,
do the flying in the restricted-vote republic that Ben Franklin admonished us to keep.
__________
“…the restricted-vote republic hat Ben Franklin admonished us to keep.”
Congress should respond to Obama’s anti-gun executive action with an opposing program to provide a free gun to every adult in America who has not been convicted of a crime of violence. Those who do not wish to receive an “Obama gun” could opt out by placing their names on a “Do Not Defend” list. Initially, of course, a lot of criminals would eliminate one another in drug and territorial disputes, but that problem would take care of itself in short order and everyone else would then be free to protect him or herself against jihadis. Write to your elected officials today and urge them to support an Obama gun program! And make sure the legislation is entitled “The Obama Gun Act.” LOL.
The Founders provided the People with the ability to replace a tyrannical and oppressive government, which, by extension, provided the People the authority to make a decision to replace a tyrannical and oppressive government.
The Founders provided the right to keep and bears arms, equal to the arms possessed by a tyrannical and oppressive government, which said government uses to subjugate and oppress citizens.
The people have the right to personally keep and bear arms in their domicile so that they may make an independent decision to join a well-regulated, ideologically compatible and otherwise appropriate militia.
Devices of mass destruction are not arms in any sense.
Impeach and remove.
“Last night the news showed the armored tanks with the battering ram that can go right through a door or wall while protecting the police inside. A gun certainly has no purpose any longer to hold off the government when it wants to come after citizens.”
YES that is what they did at Waco and triggered a fire in the tear gas that they pumped into the residence and theregy killed very many hostages and innocents.
All because they wanted a photo op and rather had an armed no knock raid than go pick up Koresh on his morning job. Pathetic.
MOLON LABE
What’s a “constitutional tipping point?”
Does anyone know?
Like many cliche’s, they may have different meanings to different people. “To me”, We The People v. U.S. (2007) was that tipping point. When the intent of the constitution is abrogated so many times, to such a point in time and to such a degree that no more realistic legal remedies are available. That The Constitution merely becomes “words” and “terms” that the ruling oligarchy simply work around to achieve their goals. A constitutional tipping point is when the Constitution becomes moot in its ability to render justice and the protection of individual rights, both enumerated and non-enumerated that the Bill of Rights was created to protect. When the majority has failed to restrain government to its enumerated activities.
When government claims to be acting in the general welfare or regulating commerce, even though it is usurping individual rights to do so. Never once has a judicial decision been rendered as to why a right should be usurped for the general welfare and the valid proof for such a decision. Once they realized they could keep enforcing their mandates, nothing became out of reach.
It is not the tort and criminal law that I am talking about but the regulatory and tax laws. Those in power basically want the majorities money and property and they want to restrain competition in their favor. They have won.