Since Obama’s re-election, rumors of his administration’s planned gun rights assault have been widely debated. Within days of the election, thousands of emails flew around the internet with questions regarding a proposed reinstatement of the assault weapons ban, a planned Obama executive order to limit ammo capacity for firearms and plans to implement draconian taxes on ammo and guns. In addition, there was serious concern that the long discussed UN Arms Trade Treaty would be imposed on US citizens.
While many of these rumors have origins in the truth, there has been significant misreporting and fear mongering on both sides of the issue. Let’s examine the most frequently discussed rumors and put a few facts on the table for each of them.
The UN Arms Trade Treaty has been used to rile up 2nd Amendment advocates for several years now. The treaty is an attempt to combat illegal international trade in arms by tightening regulations and setting standards for international commerce in conventional weapons. The text of the treaty reaffirms the right of any sovereign state to regulate transfers that occur within its own borders, pursuant to its own legal or constitutional system.
At present, the treaty is still in draft form and has not been finalized or voted on by the UN. The initial draft which was created in July 2012 was tabled because the US and several other countries did not support a vote on the draft and wanted more time to study the issue. The UN has subsequently passed a resolution to reopen discussions in March 2013, a development which the Obama administration has supported.
Even if the treaty were to pass and be signed by the United States, it must be ratified by a two-thirds majority of the US Senate in order to become binding. Based on the current composition of the Senate, even if every Democrat voted to ratify, at least 16 Republicans would have to vote to ratify as well. The chances of this passing the Senate in the current political climate are extremely small.
If by some wild turn of events, the Senate were to ratify the treaty, the right to keep and bear arms is guaranteed by the US Constitution. In a 1957 Supreme Court case, Reid v. Covert, the court ruled that the Constitution supersedes any international treaty ratified by the Senate.
Another big issue for gun rights advocates is the proposed reintroduction of the assault weapons ban. Obama specifically mentioned the possibility of such a ban during the final presidential debate. In early November, a meeting occurred between Senator Diane Feinstein’s legal team and representatives of the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) regarding the composition of a proposed new assault weapons ban.
According to reports from Mac Slavo of The Shooting Wire, the proposed ban would include guns with pistol grips, high capacity magazines, eliminate ‘grandfathering’ and prohibit sales of any of these types of weapons by those who own them. There were also reports that the law would require owners of such gun to ‘hand them over’ to the federal government.
There are several things that need to be considered here. Foremost among them is the fact that an assault weapons ban was passed and then expired. The previous ban had virtually no effect on violent crime since the ‘banned items’ are typically not used in the commission of violent crimes. It may be hard to convince legislators in the House and the Senate that this ban will be any different.
Those same legislators will also view any support of such a ban within the context of their reelection. Various sources agree that there are in excess of 80 million gun owners in the US. The US Department of Fish and Wildlife estimates that there are over 13.5 million hunters in the US and that number rose 9% in the last five years.
Can you imagine the public reaction to a substantial percentage of 80 million people being ask to ‘hand over’ non-complying firearms?
That would account for a lot of very unhappy voters if an assault weapons ban is seriously considered. Even Hillary Clinton was once quoted as saying that the reintroduction of the assault weapons ban would be some “heavy lifting” for the administration.
It is not a coincidence that most gun ban legislation originates from representatives of ‘gun unfriendly’ states. The vast majority of gun control legislation has been originated by Senator Diane Feinstein (D-CA), Senator Frank Lautenberg (D-NJ) and Carolyn McCarthy (D-NY), all of whom have reputations for being strongly anti-gun.
Based on the current political climate, the composition of the Senate and the broad majority that Republicans enjoy in the House of Representative, there may not be much support for gun control legislation introduced by the hard core anti-gun crew.
Regarding taxation relating to guns and ammo, we must remember that under the Constitution, the “power to tax” originates in the Congress. This means that any proposed increase in the excise tax on firearms (currently 11%) or new taxes on ammo would have to be passed in both the House and Senate and then signed by the President.
In 1993, then Senator Daniel P. Moynihan (D-NY) proposed raising taxes on defensive ammo by 10,000% making a box of 20 rounds worth over $1,500. The response to the legislation in both houses of Congress was unenthusiastic and the bill ultimately died in committee. A similar bill today would likely experience a similar fate.
Finally, President Obama could issue an executive order of some type limiting ammo capacity or regulating the transfer of certain types of firearms using BATFE regulations. To understand how this might work, we have to look briefly at what an executive order is.
Under the Constitution, there is no provision for ‘executive orders’ by the President. It is simply not in there. Presidents have used Article II, Section 1, Clause 1 to say that in some cases, executive orders are necessary for them to exercise their ‘presidential duty’.
The Constitution is very specific in stating that the duty of the President is to “faithfully execute the Office of President of the United States” and “to the best of [their] ability, preserve, protect and defend the Constitution of the United States.”
When any executive order directly contravenes the Constitution, it needs to be challenged by the Congress or the Judiciary.
The Supreme Court has only declared an executive order to be unconstitutional and invalid on two occasions, once during the Truman administration and once during the Clinton administration.
The Congress may challenge an executive order only by passing legislation which overturns it or defunds it. Since the President must sign any legislation for it to become law, the Congress must have the votes to override a presidential veto.
The difficulty of this process is one of the reasons why only the most egregiously unconstitutional executive orders have been overturned. Thus this final mechanism is the most likely for Obama to use, and he has shown great willingness to use executive order to accomplish his objectives during his first term.
The most central question goes to what President Obama wants his legacy to be after his second term. A direct assault on the 2nd Amendment and reinstatement of the assault weapons ban would be a highly unpopular and contentious move by Obama. He would alienate a significant percentage of the American people, both Democrat and Republican alike and go down in history as the most despotic president the country has every seen.
We can only hope that he will not relish such a legacy and during his second term will focus on how to further his accomplishments in healthcare, reduce the deficit and find ways to get the the nearly 15% of the unemployed and under-employed workforce back to work.