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.
And, while our lackluster Congress may be gridlocked, ineffective, and even irresponsible on many issues, they never tolerate an invasion of their prerogatives, i.e., their turf, by the executive branch of government. Not only that, these kind of jurisdictional conflicts are usually not governed or determined by party politics: Just the opposite—they typically unite congressional Republicans and Democrats, albeit briefly, and if only to deal with such power grabs by the president.
So, is it possible that some Democrats in Congress would oppose the whole idea of executive orders on gun control? Yes, it's not only possible, but also highly probable. The common denominator in all of this is that the Congress will be the primary mover on substantive gun control regulation, if there is any. And, even this minimalist approach comes with the very real political risk that voters will react again just as they did in 1994, and "take it out on the Democrats" at the next available election opportunity.
[See a collection of political cartoons on Congress.]
The bottom line on executive orders is very simple: Don't hold your breath. Does even the suggestion or the threat of executive orders set up a jurisdictional conflict with the Congress? Yes, and it could even motivate Congress to "do something" on gun control, but they would never admit it. What exactly? Again, don't expect a lot, and primarily because of the harsh political lessons of the 1994 voter backlash, when Democrats lost the majority they held in the House for 40 years, and directly because of the "assault weapons ban".
Now, for the New York governor (and also the New York City mayor) and their penchant for emotional antigun political rhetoric. This kind of stuff—especially in the overall context of such things—is much ado about nothing, mostly for the following reasons:
- New York state—like Illinois, Pennsylvania, Ohio, California, and many of our states—has some big cities and lots of rural counties. The idea of gun control of any kind sets up a natural and historical political tension between them that ultimately affects—if not determine—the resolution and substance of these issues.
- Our individual states have various degrees of constitutional protections for the equivalent right "to keep bear arms". So, any kind of state action on guns is subject to review by the particular state court system. And—because it also directly affects a federally guaranteed constitutional right—it is also reviewable in the federal court system. As a result of this, the state of Illinois "hand gun ban" was recently held unconstitutional in federal court, as was the District of Columbia gun ban. Particularly for our overseas readers, remember that we have a constitutionally guaranteed, individual right to "keep and bear arms" that takes precedence over any state law.
- Eventually, someone with the required and necessary credibility (and without a political agenda) will step forward and give us truly objective data on gun crime and violence. This, so we can put these issues in the perspective needed to make rational decisions. The facts will show what most of us already know intuitively: Criminals and the seriously mentally ill are responsible for the vast majority of gun crime and violence in our country—and gun control for the rest of us does very little to prevent it.
[Read the U.S. News Debate: Should High-Capacity Ammunition Magazines Be Banned?]
What's the bottom line? Like the insightful quote from Cool Hand Luke—"What we've got here is [a] failure to communicate." And, while there will probably be both state and federal action as a result of Sandy Hook, hopefully it will focus on the primary cause of these kinds of tragedies—our failed/non-existent/broken mental health "system." To the extent that the tragedy may also serve as political will for more substantive gun control, cooler heads will eventually prevail—they usually do. And, perhaps most important, our forefathers intended that our limited form of government work exactly that way.
- Read Stephen Hayes: Can Obama's Foreign Policy Picks Reboot His Static Africa Policy?
- Read Mackenzie Eaglen: The Military Lost in the Fiscal Cliff Deal
- Check out U.S. News Weekly, now available on iPad.
Reader Comments (