In this newpaper, one conservative pundit called for Congress to launch an investigation even before the specific executive orders were announced.
Another conservative pundit claimed the executive orders were a sign of an imperial presidency, while never discussing a single item in the executive orders, nor explaining why he thought it went beyond the normal sort of executive orders every single president has issued. He also said that they wouldn’t have made any difference to anything that’s happened even though they largely involve exactly the sort of things conservatives have called for — more law enforcement and attention to mental health.
The latter conservative pundit even claimed that one couldn’t change gun laws and rules without using “the amendment process” of the U.S. Constitution.
In fact, you don’t need a constitutional amendment to change how guns are treated by the the federal government. There are plenty of perfectly constitutional changes to gun laws have been enacted — both by law and executive orders.
Gun control by law and executive order
As the conservative National Review reported in 2013, George H.W. Bush and Bill Clinton used executive orders to do so. Moreover, the U.S. Supreme Court, in a 5-4 2008 ruling authored by conservatives wrote:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.
The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. [source]
But what’s really off about these criticisms is that the executive orders are rather modest steps.
Nearly all are just enhancing law enforcement and dealing with issues to do with mentally ill people having guns, which, as the above quote shows, the Supreme Court considers to be perfectly constitutional.
The best case for something going too far is requiring background checks for guns sold in all places, and perhaps that provision will be challenged in court. However, such challenges, like executive orders themselves, are also a normal part of our constitutional system, and we don’t know how the courts would rule.
Moreover, the executive orders as a whole are clearly within the president’s normal executive branch purview of executing existing laws.
The hyperbole doesn’t fit the actuality of these executive orders.
Don’t believe me?
Well, take a look at the full list from the White House, which is just below. If you think something is unconstitutional, explain which you think are unconstitutional and why.
1. The Attorney General convened a call with U.S. Attorneys around the country to direct federal prosecutors to continue to focus on smart and effective enforcement of our gun laws.
2. The President’s FY2017 budget will include funding for 200 new ATF agents and investigators to help enforce our gun laws.
3. ATF has established an Internet Investigation Center to track illegal online firearms trafficking and is dedicating $4 million and additional personnel to enhance the National Integrated Ballistics Information Network.
4. ATF is finalizing a rule to ensure that dealers who ship firearms notify law enforcement if their guns are lost or stolen in transit.
5. The Attorney General issued a memo encouraging every U.S. Attorney’s Office to renew domestic violence outreach efforts
6. The Administration is proposing a new $500 million investment to increase access to mental health care.
7. The Social Security Administration has indicated that it will begin the rulemaking process to include information in the background check system about beneficiaries who are prohibited from possessing a firearm for mental health reasons.
8. The Department of Health and Human Services is finalizing a rule to remove unnecessary legal barriers preventing States from reporting relevant information about people prohibited from possessing a gun for specific mental health reasons.
Shape the future of gun safety technology.
9. The President has directed the Departments of Defense, Justice, and Homeland Security to conduct or sponsor research into gun safety technology
10. The President has also directed the departments to review the availability of smart gun technology on a regular basis, and to explore potential ways to further its use and development to more broadly improve gun safety.
11. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is making clear that it doesn’t matter where you conduct your business—from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks.
12. ATF is finalizing a rule to require background checks for people trying to buy some of the most dangerous weapons and other items through a trust, corporation, or other legal entity.
13. Attorney General Loretta E. Lynch has sent a letter to States highlighting the importance of receiving complete criminal history records and criminal dispositions, information on persons disqualified because of a mental illness, and qualifying crimes of domestic violence.
14. The Federal Bureau of Investigation (FBI) is overhauling the background check system to make it more effective and efficient. The envisioned improvements include processing background checks 24 hours a day, 7 days a week, and improving notification of local authorities when certain prohibited persons unlawfully attempt to buy a gun. The FBI will hire more than 230 additional examiners and other staff to help process these background checks.
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