By Steve Orcutt
When the first grumblings started late last week that President Obama was going to dictate extrajudicially new Executive Orders on firearms, I had every intention of sitting down with the transcript and the orders with the intent to analyze each one and explain why and how particular ones were illegal and unconstitutional. It was a given that at least one of his actions would be illegal because this is the modus operandi of Obama. But as I waded through the information and researched, I found and realized that there is already more than enough fact checking and refuting of the speech and actions available for people to read – at least most of them. Here’s just one that I found. There are a couple significant issues with the new Executive Orders that aren’t being talked about enough, if at all, in the majority of media. One of those things not discussed is the authority of the President when it comes to Executive Orders specifically.
All law in the United States is derived from the authority of the Constitution, some would also argue the Articles of Confederation as well. Precedence does not make law, and if a precedent-setting action was illegal from its inception and is allowed to be carried forth, that only serves to facilitate an institutionalized disregard for the supreme law of the land. Executive Orders have no Constitutional authority since there is no mention or allusion to such powers afforded to the President; but with that said, the Supreme Court has upheld the practice. Although the practice of Executive Orders has been supported, the Supreme Court has also checked the power and breadth of Executive Orders; a particular example is Youngstown Co. v. Sawyer (1952). Furthermore Executive Orders have no legal jurisdiction when it comes to the people of the United States. The Legal Dictionary defines Executive Orders as, “A presidential policy directive that implements or interprets a federal statute, a constitutional provision, or a treaty.” I disagree with the “interprets” part of that because the Supreme Court has the Constitutional jurisdiction of interpretation. However, Executive Orders really only have any authority when the President, the Chief Executive of the Executive Branch of Government, issues orders, directives, and regulations to the separate departments, agencies, and employees of the Executive Branch. Any issuance of a Presidential Executive Order that has any effect on non-governmental individuals is illegal and direct violation of Article I Section 1 of the Constitution, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.“
On Tuesday, President Obama announced several “Executive Actions” in an attempt to manipulate firearm regulations and in a sense, law. Obama during his lengthy initial statement said, “I believe in the Second Amendment. It’s there written on the paper. It guarantees a right to bear arms. No matter how many times people try to twist my words around — I taught constitutional law, I know a little about this — I get it. But I also believe that we can find ways to reduce gun violence consistent with the Second Amendment.” Clearly “believing” and understanding the words on the “paper” are two entirely separate things; perhaps Obama missed the words “shall not be infringed.” Regardless of what Obama thinks or is feigning to accomplish, most of what he “unveiled” yesterday, he’s tried before, nearly three years ago to the day on January 16, 2013 (see Forbes Article).
Possibly the most disturbing action of these new Executive Orders is the unadjudicated revocation of 2nd Amendment rights for some of the elderly. A rule which is apart of the Executive Order which the Social Security Administration (SSA) has proposed is the real slippery slope of the whole affair. When you actually read the proposed rule (remember it’s not a law passed by Congress), it is very intrusive to Constitutional rights. The “unable to manage their own affairs” portion of the rule is extremely bothersome. The reason it’s a problem is because they are linking the SSA with the NICS reporting. Which will mean grandma or grandpa who has difficulty getting around or whatever, needs a bit of assistance such as managing their financial responsibilities and they give a power of attorney to their son or daughter, which does happen all the time. Well, now that aging person will no longer be able to purchase a firearm if they feel the need to protect themselves. Why? Because of this new rule:
“Among the persons subject to the Federal mental health prohibitor established under the Gun Control Act of 1968 and implementing regulations issued by the Department of Justice (DOJ) are individuals who have been involuntarily committed to a mental institution; found incompetent to stand trial or not guilty by reason of insanity; or otherwise have been determined by a court, board, commission, or other lawful authority to be a danger to themselves or others or to lack the mental capacity to contract or manage their own affairs, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease.“
The whole premise of Obama’s executive orders is to keep firearms out of the hands of criminals and mentally unstable people who would likely do harm to others. Most people don’t have a problem with that premise. However, if Grandma, Grandpa, or anyone else are to lose any of their rights, whether they be gun rights or any other, they must have the revocation adjudicated! No one has the right or authority to revoke an inalienable right from any American, period! If the precedence is set to allow fundamental rights to be whimsically dissolved, whether by executive order or legislation, without adjudication can easily provide for other fundamental rights to be discarded as well.
Then there is the issue of the Constitutional violation such a rule violates. The 3rd, 4th, 5th, 6th, 8th, 9th, and 14th Amendments would all be violated. The 3rd Amendment might be the most clever, yet very relevant. The 3rd Amendment states, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” The 3rd Amendment is relevant because in Engblom v. Carey (1982), the 2nd District US Court of Appeals ruled that the housing of National Guard troops with the guards was a violation of privacy. Would not the threat or likelihood of mental health records being used against a person be a violation of privacy? Would going to a mental health specialist, who’s opinion is wholly subjective, and deciding unilaterally that someone is “unable to manage their own affairs,” which might result in them losing a fundamental right change their decision to seek mental health assistance to begin with? I believe that it would, and I’d bet many of you would think so too.
Obama has continually said that we need, “common sense gun laws.” But common sense must not supplant legal authority. It is important to reiterate; the Constitution was not written to limit or constrain the people, it was written to limit and constrain the a federal government. For someone that drones on about American people abiding by the rule of law, Obama does very little of it himself. Perhaps if Obama were to lead by example, limit himself and the office of President to the constraints of the Constitution, then perhaps he or any other President would inspire the people to be more mindful of the law.
The real crux of the violence issue in general in America is not about guns, the real fight is about morality and ethics. Congress cannot legislate laws and the President cannot dictate Executive Orders to improve the moral uprightness of Americans. It must start at the grassroots, in the homes, parents must teach their children right from wrong. The people ultimately responsible for the current level of violence in America are the parents and their children, who today are teens or young adults without the moral compass to know, or don’t care that it’s not morally acceptable to walk into a school and gun down children or any other similar scenario. Although in the same breath the policies and laws creating these idiotic ‘gun safe zones’ which don’t allow people to protect themselves or others, are as much to blame. All risk in life cannot be mitigated and sometimes trust in the good men and women in society needs to be exercised. The concept of ‘guns stop gun violence’ works, it even works between nations. During the Cold War, the US amassed an arsenal of nuclear weapons to offset the threat of nuclear attack from the Soviets – it apparently worked because we’re still here (for now). Cities that have strict gun laws versus those with loose gun laws illustrate the same thing. Cities like Chicago have skyrocketing gun crime, hundreds die each year from illegally obtained guns. The City of Houston has much lower gun crimes and much less restrictive gun laws for law-abiding people. Regardless if the government was able to make magically all guns evaporate instantly (including theirs) there would continue to be violent crime. The UK is a perfect example of the weapon of choice for violent crime shifting due to availability. Since 1996 handguns have been virtually banned. Yet the UKs overall level of violent crime has not reduced, only shifted from firearms being the weapon to knives and blunt objects.
“I believe in the Second Amendment. It’s there written on the paper.“ – President B.H. Obama
Until and only when all of the facts of the violence issue are known and confronted, all sides of the political spectrum cease the propaganda and lies, and Americans as a whole desire for a better civil life there will continue to be violent crime. If there is a general consensus to outlaw firearms, then introduce a Constitutional Amendment because the continued assault on the 2nd Amendment only serves to increase the hostility on all sides. The hostility will if unaltered lead to civil war. Not that an attempt to ban firearms wouldn’t also result in civil war, at a minimum it would be a legal attempt.