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
That was a really tacky, unprofessional headline for a newspaper. That isn’t even worth using it to line the floor of your birdcage.
Always enjoy your posts, Jill. Well said.
I saw former CIA chief under Obama, Mike Morell, interviewed last week. We know the life blood of ISIS is the million dollar a day oil theft they sell mostly to Turkey. Morell stated when Obama was presented w/ a strategy to blow up the oil wells he nixed it because of environmental concerns.
I posted this twice because it was so far up the thread. Perhaps I did not need to.
It was a response to “what is a constitutional tipping point”. Pretty important issue to me.
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 valid evidence 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 and there is nothing I have ever seen that would give me any real comfort to alter this formidable predicament.
Jill writes, “We are an extremely violent society. This violence starts at the top. If Obama wants to do something about gun violence he can resign and submit himself before a court of law for war crimes against civilians. In the meantime our citizens can stop believing such stupid propaganda. More importantly, we can begin turning towards the realization that we can choose other ways of doing things than violence and start living better, kinder lives.”
Well-stated, and I hadn’t looked at it like that, but it does start at the top. It’s dripping with irony that Obama’s calling for gun reform while he allows the murder of hundreds of thousands of bedouins, and even Doctors Without Borders, whom he doesn’t want controlling our oil fields.
Jill,
I have some bad news for you.
Even if you defy the American Founders, refuse to move to the communist nation of your choice and
succeed in nullifying the Constitution,
you will still need to FEAR and counter the UNIVERSE, which is loaded for bear with asteroids, comets, etc.
Periodic impacts, as they say.
I’m sorry, but it’s just a matter of time
before man must start it all over again.
And then guess what, those pesky cavemen will be back
dragging women to their caves (you don’t have to worry about burquas).
Unfortunately, women will be relegated to their universal, existential function, procreation and
PERPETUATION OF THE SPECIES (God they hate that).
It’s been nice though, huh.
I mean affirmative action, men’s glass ceilings and all – something to have the party confiscate and redistribute, right? I mean, where would women be without men’s companies and assets to appropriate.
Well, take care.
John – in a hunter/gather society with women as the gathers, they hold equal sway in the community since they are bringing in half or more of the food supply.
Really Paul a hunter/gather society? I see women gathering everything, including men, shoes and food. That gives them superiority over men and why the majority of them get so many social and cultural benefits compared to men.
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 stop on.
HSR – 🙂
Jill; France and Sweden have the most restrictive gun laws in the western world and they never have mass shootings or do they?
There’s lots of comparisons to Hitler and Stalin but “Erik Honaker” of East Germany during the Cold War is probably the most accurate comparison most of us should be studying.
Simon Weisenthal, famed Nazi hunter, once said the “blacklisting” programs and tactics by the Stasi (East German secret police) had a far worse result than the Gestapo during World War.
The United States has adopted almost a carbon-copy domestic spying model (aka: blacklisting) as the Stasi but with more dangerous technology. Although the United States hasn’t yet arrived, we ate travelling very fast down that road.
The primary homicide tool of the Stasi was suicide – using “employment tampering” and “defamation” – they essentially defamed so-called “suspects” destroying them, but the victims could never confront their accusers or evidence against them. Of course when these innocent citizens die prematurely, the bureaucrats likely don’t record it as premeditated homicide perpetrated by the bureaucrats.
Ask any U.S. citizen of Muslim descent living in the New York City area if this sounds familiar. Guess what likely would happen if we have another Oklahoma City type attack – it won’t be U.S citizens of Muslim descent being killed by government agents – it may well be someone you know!
Obama is president of the nation which manufactures and sells the most weapons in the world. Space based, sub/aircraft carrier based, on land– every actor in every conflict gets sold weapons by his donors and by his govt.’s negotiations. I must ask why anyone takes Obama’s opposition to gun sales seriously.
This is a man who has killed more civilians than Bush. Again, why is he taken seriously on this issue? He should be up for prosecution as a war criminal along with his predecessors whom he recently honored at the White House (see the story at Glen Greenwald’s twitter).
We are an extremely violent society. This violence starts at the top. If Obama wants to do something about gun violence he can resign and submit himself before a court of law for war crimes against civilians. In the meantime our citizens can stop believing such stupid propaganda. More importantly, we can begin turning towards the realization that we can choose other ways of doing things than violence and start living better, kinder lives.
@stevegroen said:
“While jerks like Diane Feinstein and the President use these incidents as a tool for gun law reform, it’s just a red herring for purposes of demagoguery, and it’s no better than Cheney dreaming up evidence of WMD in Iraq 13 years ago.”
The truth, the whole truth and nothing but the truth, so help us God.
@Warspite You mention a book by A.E.Van Vogt. I read “Players of Null A” years ago and barely understood it. Maybe it would make more sense today. Am going to look for the book you mentioned. Thanks for the reference.
The DHS, already armed to the teeth and beyond, wants to remove the last tid-bit of our ability to resist. Does no one question the dramatic increase in “mass shootings” since Obama took office? Look up the stats if you don’t know. Notice the “duping delight” displayed by the ‘witnesses and victims’ of these apparent ‘tragedies’. For God’s sake I wish more people would learn BODY LANGUAGE!! It drives me out of my mind that so few know it. The masses are continually duped and the lies are staring in everyone’s face and the 1% (who are not the ‘good guys’ hint hint) know how incredibly easy it is to lead people around by the nose. The only thing that gives me hope sometimes is knowing that the American Revolution was won by participation of only 3% of the population.
It’s not just the 2nd Amendment the nanny govt. is attacking. There is an under reporting of the edict by the AG regarding speech. She wants Muslims to report any anti-Muslim speech to the DOJ. Hillary is jumping on the anti gun bandwagon to get nominated. She will make a triangulated speech @ the Dem Convention. She will then take such a hard right turn her fat ass will almost tip over as she tries and win the general election.
As libertarian actor Vince Vaughn courageously stated from liberal Hollywood, “Nothing stops a burglar in his tracks like the sound of a gun being cocked.”
On the macro level, which is my default position, I see what is happening as this. The nanny government is loosing control. Their meme is “we will protect you.” Just last week Obama, in his most serene, condescending, didactic, voice assured us there were no imminent plots. The police, who have also been against the 2nd amendment in large part are starting to leave the fold. The black police chief of Detroit just said he encourages responsible, licensed conceal carry people to be armed. When control freaks like the nanny govt. feel they are losing control, they try and crack the whip. It ain’t going to work. We are responsible for our own, and our family and neighbors safety.
DBQ:
Shoot. Stanislaus and the Great non-State of Jefferson lie in one of the least populated areas in California and Oregon. Who’d break into a house up there, other than a outgoing black bear? 🙂
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?
@ Karen
Yep. In our area I would hazzard a low guess of at least 80% of households are armed or have access to guns at a moment’s notice. Home invasion is not known however, as you stated, the pilfering of tools tractors and other equipment is not uncommon.
Plus….the other sign that the wannabe robbers should leave the house and property alone in our area is that it is flying the State of Jefferson Flag or the Gadsden Flag.. Don’t tread on me!
https://jeffersonoutfitters.com/wp-content/uploads/2015/05/flag-soj-300×300.jpg
Let’s give any adult the right to carry a concealed weapon, these Muslim terrorists only attack soft targets, This brainless president wants to make it easier for the terrorists. well as soon as he gives up his armed bodyguards I’ll give up my right to carry a gun
Gun owners are most responsible for losing gun rights. From the so-called “War on Drugs” to the so-called “War on a Tactic” after 9/11 – gun owners themselves have gladly sacrificed other amendments for greater security (ex: 1st Amendment, 4th Amendment, 5th Amendment, 6th Amendment, 7th Amendment, 8th Amendment, 9th Amendment and 14th Amendment). Gunowners were completely silent sacrificing these rights and liberties in exchange for greater security.
Gun owners have no moral standing whatsoever to now complain about sacrificing the 2nd Amendment in exchange for greater security (that saves more lives than worldwide terrorism combined). What they should be doing, if they want common-sense gun regulation, is opposing torture, warrantless spying, drones and closing Guantanamo that violate other amendments.
The Bill of Rights all ride in the same boat, you take the whole U.S. Constitution or none of it – you can’t cherry pick your favorite amendments.
RB: Agreed. We can’t be arguing that Bush and Obama have had the right to level the Middle East for “our oil,” or to prevent Russian gas pipelines there, or to protect our ::ahem:: ally, Israel, and as you mentioned the right to impose what Obama has euphemistically called a “minor inconvenience” (Bush was to stupid to even acknowledge the infringement of our fundamental rights) by vacuuming up into storage anything and everything we we do and believe is protected by the right of privacy, while at the same time singularly supporting the Second Amendment.
We caused by intentional destabilization and control the catastrophe along the Mediterranean Rim, and Ukraine, the foreseeable annexation of Crimea, and the massacres such as at Ft. Hood, Boston, Memphis, and now San Bernardino.
While jerks like Diane Feinstein and the President use these incidents as a tool for gun law reform, it’s just a red herring for purposes of demagoguery, and it’s no better than Cheney dreaming up evidence of WMD in Iraq 13 years ago. We all know that or should, but let’s all remember why it’s happening: Our imperialistic foreign policy does not respect the right of sovereign nations to exist if their policies do not coincide with our own. That’s simple bullying: do enough of it and you get the horns.
We need to get the flock out of the Middle East. Are innocent lives worth compelling the value of the US dollar for a few US billionaires?
“’The war is simply a depraved act by weak and miserable men.’ Including all of us. Including myself. . . . The point that I’m trying to make and I think that ought to be made is . . . what seems to me a very – in a sense – terrifying aspect of our society is the equanimity and the detachment with which sane, reasonable, sensible people can observe such events. . . . I think that’s more terrifying than the occasional Hitler or [General Curtis] LeMay or other who crops up. These people would not be able to operate were it not for . . . this apathy and equanimity. And, therefore, I think that it’s in some sense the sane, reasonable, and tolerant people who share a very serious burden of guilt that they very easily throw on the shoulders of others who seem more extreme and more violent.” – Noam Chomsky, during interview by William F. Buckley, Jr., on Firing Line (1969).
RB, and how are we supposed to stop the tyranny of government when they are no longer even required to answer simple questions when posed in a formal Request for Redress of Grievances was ignored and the corrupt Federal Judiciary said they did not have to answer our questions.
You don’t realize it yet be we have been overthrown from within. no matter what you say of what you do you will lose any claim to restore any individual rights.
Good article in the NewYorker
http://www.newyorker.com/news/daily-comment/so-you-think-you-know-the-second-amendment
RH Stoll writes, “Good article in the NewYorker
http://www.newyorker.com/news/daily-comment/so-you-think-you-know-the-second-amendment”
Thanks for the article. It points out that politics have shaped the meaning of the Second Amendment and gives a basic history of gun law. The Supreme Court’s interpretation for “more than one hundred years” prior to Heller seems to me flat-out wrong, however:
“’A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.’” The courts had found that the first part, the ‘militia clause,’ trumped the second part, the ‘bear arms’ clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.”
If the sentence were about a well-regulated militia having the right to keep and bear arms, wouldn’t any of the signers have pointed out that as written the amendment CRYSTAL-CLEARLY means the people’s right, as opposed the militia’s right, shall not be infringed? Those guys weren’t stupid, but apparently our government thinks we are.
I love walking by our local police patrol cars on any given day and seeing the so-called assault rifles and extended-magazine shotguns that no one else is supposed to have.
I sure wish they made the Sig MCX in .308. It’d be a great hunting rifle.