This story, coupled with Obama’s comments on Tumblr, I imagine must sound pretty ominous for Second Amendment supporters.
But what exactly can Obama do unilaterally as President? Could he institute a gun-grab as in the Australian model he enthused about? What are the President’s powers in this area.
Disclaimer: I’m English so don’t have a dog in this fight, although I am resentful of the way our government treats us as children who shouldn’t be allowed near guns.
Broadly speaking, the executive branch has two major powers: enforcement (of federal statutes) and regulation.
Obama can increase enforcement of existing laws (via the BATF), but only by trimming the budget somewhere else in the Justice Department. I expect this would take the form of prosecuting more gun dealers who fail to comply with background check, waiting period and similar requirements.
He can regulate under the National Firearms Act and certain other statutes, but the executive’s authority in this area appears to be limited to redefining the types of firearm covered (the NFA only applies to automatic weapons and certain types of long gun, though it has been interpreted to cover firearms with certain other features.) He can also increase the amount of information available to NICS (the background check system) so more buyers will be flagged.
He certainly can’t unilaterally create a forced buyback program a la Australia (Congress couldn’t either, for that matter.)
Constitutional challenge would severely limit any power that this Administration thinks they have.
What’s the constitutional challenge to, say, deciding to put more resources into going after businesses that fail to comply with existing federal gun laws?
I forgot to explain the second part: the executive can regulate because legislation almost invariably requires regulation to implement it. So Congress might say, “all firearms dealers must conduct background checks administered by the BATF,”* and the executive gets to fill in the details like what the background check entails and whether it is done electronically or on paper and so on. Sometimes the legislation expressly provides for executive authority to create regulations, and sometimes it’s implied because there is a gap.
*This is just an example. The actual legislation that requires the background check is somewhat more comprehensive so there is less room for regulation.
A company in Vermont that imports vintage guns and reconditions them for sale to collectors, recently was denied a permit to import about $30 million worth of WWII-era M1 rifles. The company claims the permit requested was similar in all ways to previously granted permits, and strongly implies the administration quashed it for political reasons.
I have no way of knowing if this claim is true, but if so, it would be an example of an administrative action.
Using Australia as an example is poor. Australia is a different country, with a different culture, a different view on violence and does not have a constitutional right to bear arms.
Restrict the consumption of beer, however, and it would be a revolution in short order.
The ban on the importation of military type rifles went into effect under Bush I. Bush II then modified it to include parts. I think it has a lot more to do with economics than safety. U.S. gun manufacturers would have a hard time competing with the Chinese.
I still think Obama should have made an exception these particular historical ones. (mostly M1 carbines, not what I would consider an assault weapon). Just because I like old WWII rifles, and the recent gun craze has made them much harder to acquire.
I’m neither American, nor am I an expert on this, but I’ve always thought the reliance on the Second Amendment to be a little odd in modern times.
You want a well-armed militia with personal firearms to keep a potential rogue government with personal firearms in check? Cool with that. But these days, that government has stuff like cruise missiles, nuclear submarines, etc. Now, given that Joe Public isn’t, I assume, allowed to own such weapons, isn’t there already strict arms control in place to the point that the Second Amendment’s reason for being is a century or two out of date?
Is this a common argument? Feel free to tear it to pieces.
OMG. You only brought logic and common sense to a gun discussion? How cute!
Well, these days we have Twitter and Tumblr and Facebook. The First Amendment never contemplated these types of “press.”
It seems to me that one cannot decide to analyze the Second Amendment based on the idea that there was, at the time of its enactment, more parity between personally-owned weapons and military-grade weapons…and then at the same time insist that the First Amendment be interpreted liberally, analogizing ‘press’ to modern communications. The Fourth Amendment forbids searches, but under what logic does it prevent the government’s use of an infrared scanner to look at your house? That certainly didn’t exist back when the Fourth Amendment was passed, and the concept of a “search” back then was strictly trespassory. But we have analogized the Fourth Amendment to modern technology liberally.
Under what theory of construction is the Second Amendment analyzed so sparingly, and the others so liberally?
As the Soviets found out they couldn’t hold Poland, East Germany or their own territories with cruise missiles and nuclear submarines. Your argument of military superiority doesn’t apply to governing the populace. If the people aren’t willing to crush their own families and friends then the power to govern them vanishes.
The Founding Fathers of the United States realized this as even in their day the government held the ability to destroy entire towns. What they lacked was the power to govern entire towns against the will of the people.
I think the second amendment as a justification for the right to bear arms is a little suspect. The second amendment is the mechanism that gives the right. It was written by and approved by representatives of the population and could be changed by representatives of the population. The real issue should be the merits of the second amendment in modern times.
As were all the others.
As posted above by others, what makes the second the special child to be spanked?
I fear it is fear itself. Misplaced fear. Refusal to see what the actual problem is.
That is part of my opinion. 
Considering an overwhelming majority of the “population” is in support of 2nd amendment rights…good luck trying to change it.
Nothing - if someone cites the first amendment as the reason they need free speech, I’d question the logic there.
The second amendment isn’t special, but neither is the first. Both have been limited by laws and rules and some of those have been overturned.
The Congressional power over the purse strings is the fundamental limit on the administration in this respect.
The Executive branch can prioritize spending on prosecutions. It is not so clear that they can spend on that which has not been authorized by Congress. So while Obama could order the Justice Department to prioritize the prosecution of federal gun crimes, it is not so clear that he could increase the Justice Department budget to allow them to do so on top of their already appropriated funds.
Yes, and we could use Switzerland as the opposite example (*requires *“assault rifle” ownership" by most adult males, but little gun crime) but again-different country, with a different culture, a different view on violence .
In America, with our culture, our view on violence, *our *mixtures of peoples, etc- gun control seems to have no significant effect on violent crime.
Thus it’s not a question of giving up rights to increase personal safety. No significant increase in safety occurs.
Now, if it did- well, then there’d be a interesting debate. If you could show me that banning handguns would reduce the murder rate by 50%- I’d listen. But gun bans have had no significant reduction in violent crime in the USA.
I am not certain if violent crime actually went down in Australia by a % over that which occurred in the USA over the same period.
The amendment which has taking the spanking is the fourth.
That’s all true, but not very responsive. Of course there are ways that Obama could prioritize enforcement of federal gun laws that would be outside his power, and those that would be within his power. I’m assuming you’re not trying to defend Omar Little’s claim that “Constitutional challenge would severely limit any power that this Administration thinks they have.”