The Folly of an Obama Executive Order on Gun Control

Executive orders set up a classic and fundamental constitutional conflict with Congress.

San Francisco police officers document guns that are being surrendered during a gun buy back program on December 15, 2012 in San Francisco, California.
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Daniel Gallington is the senior policy and program adviser at the George C. Marshall Institute in Arlington, Va. He served in senior national security policy positions in the Office of the Secretary of Defense, the Department of Justice, and as bipartisan general counsel for the U.S. Senate Select Committee on Intelligence.

A couple of weeks ago I wrote for U.S. News blog The World Report on "why the United States is not like the rest of the world on gun control". In a word, we are fundamentally—even radically—different when it comes to the "regulation" of firearms in our society. Our individual right (and it is an individual right) to "keep and bear arms" is historical, constitutional and almost sacred—the same as our free speech. And, perhaps even more important (at least in context of the current debate) our individual right to "keep and bear arms" is described in our Constitution in terms of a prohibition against government from "infringing" on the right.

I also opined that there was little realistic possibility of substantive "gun control" legislation. This primarily because of the election backlash suffered in 1994 by gun control advocates—mostly Democrats—resulting directly from the so-called "assault weapons ban".

During the past week, however, so much silliness has come out of Washington (and New York) that I am compelled to address the subject again, mainly because our overseas readers will hopefully look here for some ground truth. In addition, foreign viewers of our so-called "news" channels (each network with its persistent political point of view) will not get a very accurate picture of how these issues will ultimately be "resolved." Unfortunately, the U.S. media "take" on guns is mostly uninformed hype and will stay that way as long as the Sandy Hook story has "legs".

[See a collection of political cartoons on gun control and gun rights.]

The latest spate of political silliness and grandstanding on guns comes from two of our most seasoned grandstanders: New York's Gov. Andrew Cuomo, who clearly wants to be president someday; and, the always entertaining—if not usually embarrassing—Vice President Joe Biden.

Lets take the VP's comments first: He said: "The president is going to act. Executive Orders, executive action, can be taken," meaning that the president "can" issue "executive orders" to achieve some of what he hopes to accomplish, re: guns. Such a small part of this statement is true that it renders the whole idea far more representational of Joe Biden's more typical blabber. Sure, the president can issue as many executive orders as he wants—and on most any subject he chooses—but in order to have the "force and effect of law," they must to be: 1) constitutional, and 2) not invade the province of our Congress.

So, what substantive area does that leave for executive orders that directly affect—or even involve—our basic, individual constitutional right to "keep and bear arms"? Not much. Not only that, we can be assured that whatever executive orders the president issues on guns will be immediately challenged in federal courts and no doubt end up in the Supreme Court for final adjudication as to their constitutionality.  Meantime, the substantive application of the challenged order would probably be suspended pending the outcome of the court challenge—and this could take months, if not years.

[Check out our editorial cartoons on President Obama.]

Is there a good analogy that illustrates the difficulty of the whole concept of issuing executive orders for gun control in the United States? Sure: Just imagine how many executive orders could/would be legally enforceable that involved the regulation and control of free speech? Now, there's a subject for the media to talk about—and with total objectivity, I'm sure. If that's not difficult enough, executive orders on whatever subject—unless they are enabled, required or expressly authorized by legislation (a good example are Internal Revenue regulations)—set up a classic and fundamental constitutional conflict with Congress.