The Wrongologist

What’s
Wrong Today:

From the New York Times: Yesterday at the
White House, Mr. Obama announced plans to introduce legislation by next week
that includes a ban on new assault weapons, limits on high-capacity magazines,
expanded background checks for gun purchases and tougher gun trafficking laws
to crack down on the spread of weapons across the country.

Without
waiting for Congress, the president also acted on his own authority, signing 23
Executive Orders designed to increase the enforcement of existing gun laws and
improve the flow of information among federal agencies in order to keep guns
out of the hands of criminals and others who shouldn’t have them. View them here.

From Free Republic: These actions by
the president raise the question, “Can he do that?”

The answer
is, it depends how far he tries to go. And
he didn’t go beyond the point where he can be easily challenged under the law.

Executive
orders are not constitutionally sanctioned or prohibited, but once signed, they
have the force of law.

Presidents
have utilized executive orders to drive policy within the executive branch
since the dawn of the republic. In some cases, presidents have acted aggressively
through executive orders:

• President
  Lincoln suspended the writ of habeas corpus during the Civil War

• President
  Roosevelt established internment camps during World War II

• President
  Truman mandated equal treatment of all members of the armed forces

• Eisenhower
  desegregated the schools

• Kennedy
  and Johnson barred racial discrimination in federal housing

• Reagan
  forbade the use of federal funds to advocate for abortion

Every
president since George Washington has used executive orders in exercising the
“executive power” granted in Article II, Section 1 and in “tak[ing] Care that
the Laws be faithfully executed” as required in Section 3 of the same article
of our Constitution.

Presidents
acting by executive order have been challenged in court, notably in Youngstown Sheet & Tube Co. v. Sawyer
(1952). In Youngstown, the Court held
that President Truman had exceeded his authority by directing the seizure of
steel mills to avert a strike during the Korean War. The Court held that “the
president’s power to see that laws are faithfully executed refutes the idea
that he is to be a lawmaker.” Thus, the majority found that Truman had strayed
too far into the province of the legislature, violating the
separation-of-powers doctrine.

Justice
Robert Jackson’s concurrence in Youngstown
established the three-part framework for considering executive authority going
forward.

• First,
  there are the areas of express or implied constitutional or statutory
  presidential authority, where the president’s authority for executive action is
  legitimate.

• Second,
  there are areas where Congress has not legislated and where the line of
  authority between the president and the Congress is vague or overlapping.

• Finally,
  there are areas where presidential action is “incompatible with the express or
  implied will of Congress,” where the president’s authority is at its lowest.

Turning to
limitations on guns, here are three recent examples:

In 1989, George
H.W. Bush declared by executive order a permanent ban on
most foreign-made semiautomatic assault rifles.

In 1998, Bill
Clinton issued an executive order to ban the importation
of more than 50 semiautomatic “assault weapons” that had been
modified to get through President Bush’s “sporting purposes” exemption.

In 2001,
Clinton moved again via executive order, banning the importation of
assault pistols.

Republicans
are already threatening to impeach Obama over executive
action on gun control. Rep. Steve Stockman (R-TX) threatened that he would file
articles of
impeachment
against President Barack Obama if he uses the power of his office to address
gun control.

Stockman,
who can’t be familiar with the Constitution or history, claimed an executive
order would be “unconstitutional” and “infringe on our
constitutionally-protected right to keep and bear arms.” Stockman went on to
say:

Stockman
previously served in Congress from 1995 to 1997, but reality may not be playing
a large role for Stockman. He is the guy who introduced “The Safe Schools Act”
this month, a bill aimed at
repealing federal laws mandating gun free zones around schools.

The Absolutists’ case against Mr. Obama’s right to do what he is
doing is not based on Supreme Court precedents or any careful analysis of
presidential powers.

It’s
based on a belief that the 2nd Amendment is unconditional. That it is the constitutional guarantee that ensures all the
others. So any gun regulations, existing or potential, are suspect as
“tyrannical” in that they limit the ability of “law-abiding Americans” to
stockpile weapons against the day when “patriots” decide
being law-abiding is no longer acceptable.

The argument by the 2nd Amendment
Absolutists demonstrates a perfect example of circular reasoning:

• We need
  guns so that we can resist the government when it becomes tyrannical

• When does
  the government become tyrannical? When it comes to take our guns away

Why is the 2nd Amendment an absolute right? After all, the 1st
Amendment is not absolute, you cannot have a religion that engages in human
sacrifice and you cannot shout ‘fire’ in a crowded theater, (unless there is a
fire).

What
makes the 2nd amendment more sacrosanct than the 1st amendment?

The 2nd
Amendment says nothing about regulating the sale of guns. This point has been
argued, and lost in District of
Columbia vs. Heller:

Indeed, it
gets worse for the Absolutists in Heller:

One final argument against the 2nd
Amendment Absolutists: Militias exist
as a protection against insurrection, not a means to enable it. The Militia Act of 1792 should be the controlling
document. It says in part:

Note that the Militia Act of 1792 closely
followed the ratification of the Bill of Rights in 1791.

Many of the same people were involved
in crafting both.

Lt. Col
Jason Dempsey wrote yesterday at Foreign
Policy that the NRA’s notion that an openly armed American society would
make us look like more like what he has seen in Afghanistan, than like a freer
society.   

The
Wrongologist asks again: What kind of
society do we want to be?

We should
scorn the paranoia that sees our best solution as even more weapons in more
public spaces.