Good Info On The Fallacies Of Obama's/Cuomo's Gun Bans

[Mr VJP]

When President Obama finished announcing his wish list of things he'd like to do to combat violence (and simultaneously eliminate the most popular firearm in the country) one SHOT Show attendee summed the entire performance in a single word: "bu_____it".

Not a bad description of the vagaries, time-worn phraseology and continued demonization of gun owners that the administration has used to bring a long-awaited assault plan out of the closet and train it on gun owners.

"Now Is The Time" trumpets the cover of Mr. Obama's plan, and the subsequent fourteen pages offer a glimpse into the ultimate goals of this admnistration.

As a firearms-focused community, I'd suggest we widen our viewpoint beyond the immediate and look at the long-term ideas expressed in a plan that looks more like a PowerPoint presentation than a considered solution to violence.

For example: the requirement of a criminal background check on ALL firearms sales. Sounds like a pretty good idea-until you look at the ultimate goal of this proposal: background checks on all firearms sales. All, in this instance, means all including private transactions. There's language that supposedly covers "certain transfers" between family members and "temporary transfers" for hunting and sporting purposes.

So how would that temporary transfer be documented? Will I be allowed to give a friend a letter saying that I'm loaning them a gun for sport shooting or will I be required to report a temporary transfer, record the serial number and description of the firearm, and then be given a "govermnent approved form" which must accompany the referenced firearm? What happens if the temporary recipient neglects to includ the form or loses it? Will the firearm in question then have to be surrendered to the authorities?

Regarding the "call to licensed dealers and private sellers to do their part" through Executive Action....the option already exists. But does the Executive Action propose to reward FFLs for carring out the transactions? If the government creates that sort of compensation to FFLs for private transactions, will dealers quickly find that "free government money" incentive enough to fall in line with later suggestions?

In each instance where resistance is likely, there's the common Washington solution: toss it some money. For instance, there's a referenced "incentive" for states to share information with the background check systems. The Justice Department is set to invest $20 million from FY2013's budget to give states "stronger incentives to make this data available". Of course, we've all know who's paying the freight on this one- taxpayers.

Here's the one that's most disturbing to me: Make sure "dangerous people" are prohibited from having guns. OK, we all agree that those with mental illnesses be forbidden from owning firearms. But that's not without an overall concern: who determines mental illness? Will it take a hearing with a set of standards to be met, or can a law enforcement officer or a physician be able to arbitrarily declare one deficient?

There's another gotcha in there as well...the plan doesn't just seek to keep "dangerous" people from having guns, there's also language that specifically refers to "untrustworthy" individuals. What makes one "untrustworthy" - would dissent against government policies qualify, or more accurately, disqualify you from firearms ownership.

See where this is headed? It's the death of 1,000 cuts- and sets a very dangerous precedent. A president seeking to lead by fiat - or decree. I wasn't a history major, but I do seem to remember this country being settled by people who'd had enough of decrees with no checks and balances.

(NOTE: You can read the document yourself here)

Since the called-for bans on "assault weapons" and "high capacity magazines" have been largely been discussed to death, there's no reason to dedicate space to reminding you that a gun is a tool and a magazine- regardless the capacity- is nothing more than the fuel supply. It is the operator that determines the intent.

A real concern is "finishing the job of getting armor-piercing ammunition" off the street. Last week, we reported that the ATF was counfounded in its attempts to define armor piercing (AP) ammunition. In fact, many of the so-called "green" ammos endorsed by environmental groups concerned with lead contamination from traditional ammunition falls under the ill-defined AP category.

The National Shooting Sports Foundation characterized the proposed actions as missing "the central issue involved in violence where a firearm is misused is the unauthorized access to the firearm."

"We believe it is critical to first focus on the unauthorized access to firearms by irresponsible persons and those not legally qualified to possess them."

To that end, the trade organization agreed that long-needed changes to the NICS system should include all appropriate mental health and other records, including restraining orders, into the NICS system. Likewise, there was no argument with a call for safety and responsibility.

The National Rifle Association says the administration's attacking firearms while ignoring children was not the solution. Rather, the NRA suggests that "Only honest, law-abiding gun owners will be affected and our children will remain vulnerable to the inevitability of more tragedy."

Iowa Senator Charles Grassley wasn't nearly so politic in his response. Instead, the ranking member of the Senate Judiciary committee called the president's programs "intellectually dishonest" by "arguing for new programs restricting the sale of guns, when this administration deliberately allowed the illegal sale of guns to known straw purchasers."

"Instead of a thoughtful, open and deliberate conversation," Grassley says, "President Obama is attempting to institute new restrictions on a fundamental constitutional right. It's an invitation for long, drawn-out court battles and more mistrust by the grass roots, and it's the wrong way to unite people behind a proposal on such a powerful and emotional topic. The legislative proposals face an uphill battle in Congress, especially those that include billions of dollars in new federal spending at a time when the government's credit card is maxed out."

So why the sudden rush to issue Executive Orders? I'd say that it's recognition of the fact that emotional responses to tragedies fade, allowing cooler heads to prevail-and making it possible for a facts-based argument to be made against a plan ostensibly assembled in a few days.

Senator Grassley characterization of the President's barrage of executive orders was a demonstration of his belief the "Second Amendment can be tossed aside." Grassley feels "Using executive action to attempt to poke holes in the Second Amendment a power grab along the same pattern we've seen of contempt for the elected representatives of the American people."

That brings up a knotty subject: Executive Orders. There is no constitution provision or statute that permits executive orders. There is a grant of "executive power" in Article II, Section 1, Clause 1 of the Constitution, and a further position to "take care that the Laws be faithfully executed". In the past, presidents have used these so-called "Constitutional reasonings" as the basis for their issuing their orders.

There are, however, two previous cases that have limited what a President may Constitutionally decree in an executive order. One, Chamber of Commerce of the United States, et al v. Reich 74 F.3d 1322 (D.C. Cir. 1996), rehearing denied, 83 F.3d 442 (D.C. Cir. 1996), gives a strong legal precedent in the separation of powers- and the obvious fact that Congress considers firearms regulations its purview, not the White House.

The second case Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) should

also reinforce limits on the President's presumption of authority in this instance. In 1952, President Truman's attempt to put all the steel mills in the country under federal control was invalidated under the decision that it was an attempt to make law rather than clarifying a law created by Congress.

Another point in Youngstown is the ruling that Truman's executive order violated the sacrosancity of private property. If an executive order gets close to areas under constitution protection (think 2nd Amendment) the President must cite explicit justification. As you may have noticed, this adminstration isn't strong on explicit justification. And the courts have shown more than a slight willingness to give strict scrutiny to any presidential order appearing to violate a constitutional right-like firearms ownership.

That's encouraging, but what remains discouraging is the lack of a cohesive action plan by the national organizations. This offensive against firearms owners isn't disorganized; in fact, it more closely resembles the 2012 Presidential campaign at this point. The Obama camp used their strategies of organizing and energizing their side to the apparent befuddlement of the Republican party.

The lack of a cohesive plan- that has been shelf-ready and waiting to be enacted -points out a disconcerting lack of planning and forethought by groups supposed to represent the interests of their members.

In other words, gun owners may find themselves acting unilaterally or in small groups should some group not step forward with an action plan, talking points for the average citizen, and a message that humanizes gun owners.

Solomon, one of the wisest rulers in history put it best, "Where there is no vision, the people perish, but he who keeps the law, happy is he." (1 Samuel 3:1)

As always, we'll keep you posted.

--Jim Shepherd

The Outdoor Wire