Executive Orders on Firearms Forthcoming?
James Swan 01.14.13
On Wednesday, January 9, Vice President Joe Biden said that the December 14 Newtown, Conn. School shooting that took the lives of 20 elementary school children — “touched the heart of the American people so profoundly” and it “requires immediate, urgent action.”
Biden added that in addition to recommendations to Congress from his special Task Force on Gun Violence: “The President is going to act. There are executive orders, executive action that can be taken. We haven’t decided what that is yet, but we’re compiling it all.” “I want to make clear that we’re not going to get caught up in the notion that, unless we can do everything, we’re going to do nothing.” There is “pretty wide consensus on three or four or five things in the gun safety area that could and should be done.”
The Task Force has said it will confer will all stakeholders. It met with the NRA and other firearms organizations on January 10. The NRA emerged from the meeting, accusing Biden’s task force of leading an “attack” on the Second Amendment.
Other stakeholder groups Biden’s Task Force has met with include the entertainment industry, video games producers, and sportsmen’s groups, as well as anti-gun groups. On Friday, after a final meeting with video game manufacturers, Biden said there was “no silver bullet” to prevent gun violence.
Biden’s comment about Executive Orders was taken by some as an omen that the president wanted to unilaterally restrict gun sales to legal buyers. But, according to the NY Times, officials said that “executive orders” refers to limited measures such as directing more attention and resources to pursuing violations of existing gun laws and sponsoring research on gun violence. However, other sources predict Biden’s Task Force will advocate universal background checks and bans on assault weapons and high-capacity ammunition magazines.
Executive Orders
To get a better grasp on what is going on, let’s first get some clarity on “Executive Orders.” Just what can a President do without the consent of Congress?
Executive Orders (EOs) are legally binding orders given by the President, generally used to direct federal agencies and officials in their implementation of congressionally established laws or policies. However, they have also been used to guide agencies in directions contrary to congressional intent.
EOs come in various forms. “Proclamations” are special EO’s that are generally ceremonial or symbolic, as when the President declares certain special days, such as National Hunting and Fishing Day. President Lincoln used the Emancipation Proclamation to call for an end to slavery.
Other EOs can concern national security or defense issues.
EOs don’t require Congressional approval to take effect but they have the same legal weight as laws passed by Congress. EOs have been used by every President since George Washington. In the early 1900s, the State Department began numbering them. There are now over 13,000 numbered EO’s.
Some EOs have been very important. Harry Truman used one to integrate the armed forces. President Eisenhower used an EO to desegregate schools. Presidents Kennedy and Johnson used them to bar racial discrimination in federal housing, hiring, and contracting. President Reagan used an EO to bar the use of federal funds for advocating abortion. Franklin D. Roosevelt used an EO to delegate military authority to remove any or all people in a military zone, which paved the way for Japanese-Americans on the West Coast to be sent to internment camps for the duration of World War II.
If Congress doesn’t like an EO, it may rewrite or amend a previous law, or spell out in greater detail how the Executive Branch should act. In the checks and balances system of government, the President has the right to veto the bill if he disagrees with it. In this case a 2/3 majority would be required to override an EO. Also, the Supreme Court can declare an executive order to be unconstitutional, usually on the grounds that the Order deviates from “congressional intent” or exceeds the President’s constitutional powers. To date, this has only happened twice.
Just What Firearms EO’s Can We Expect?
Biden’s reference to EOs sends chills down the spine of some firearms owners. When he was a Senator in Illinois Obama opposed a law that allowed people to use firearms in self-defense, and he said that he supported on the manufacture, sale and possession of handguns. Fears of restrictions on firearms by Obama have already stimulated the largest buying spree of firearms in history.
Firearms scholar and former CO Assistant Attorney General David Kopel laid out a worst case scenario in a November article that was aimed at stopping people from voting for Obama. It certainly got some folks riled up, nonetheless Obama won the election.
Another firearms scholar, Stephen Halbrook, thinks that the President might use an Executive Order to limit or ban certain imported firearms.
The Washington Post says that the President is considering measures beyond reinstating a ban on assault weapons and high-capacity magazines, including universal background checks for gun buyers, a national gun database, strengthening mental health checks and tougher penalties for people carrying guns near schools or giving them to minors.
Others think he will call for supporting Project Exile, which is a pilot program first implemented in Richmond, Virginia, that prosecuted serious local gun crimes committed by felons under federal law, sending those convicted to federal prisons far away from their communities.
Another likely EO is ordering the Justice Department to increase the prosecutions of people who falsify information on their gun background checks. In 2009, the FBI reported 71,000 instances of people lying on their background checks to buy guns. But the Justice Department prosecuted just 77 cases. In my work with game wardens, I cannot tell you how many times I have seen wardens on patrol stop someone in the woods for a routine check and discover they are a convicted felon with a gun.
Another possible EO is ordering the Justice Department to increase enforcement actions at gun shows so all gun purchases would require background checks. This could also include requiring all private sales of guns to go through a background check.
Frankly, we won’t know what Biden’s Task Force will call for on Tuesday. We may not know for a while. But when the report does come out, people should be asking if the actions will focus on all guns and their owners, or more specifically target a group, such as potential school shooters. And secondly, are these cosmetic actions, or are they genuinely aimed at prevention. This is an emotional time and some may try to use the current frenzy to seek widespread action on all firearms and their owners.
One rampage school shooting triggered this action. The recent Aurora, CO, theater shooting was also by a student, though he did not attack other students in school. The motivations of a rampage school shooter are not those of most people who want to commit a crime. School shooters tend to be victims of bullying, and suffer from mental illness. They want revenge, perhaps some instant fame and they expect to die. Most criminals want to walk away from their crimes.
One EO that I would support would be to fix the National Instant Criminal Background Check System to do a much better job of identifying people with serious mental illness. More than half the states have not provided mental health records to the federal data base.
If preventing crimes with guns in general is the issue, then realize that most guns used by criminals are stolen. Simon Fraser University Professor Gary Mauser has shown that based on the Canadian experience, registration of long guns has no effect on reducing crime. Criminals generally don’t register their guns.
For those advocating dramatic bans on firearms as a solution to all firearms violence, let me conclude with three thoughts about violence prevention.
1. The 1985 to 1992 TV series “MacGyver, “ starring Richard Dean Anderson, was about a special agent who would not carry a gun. He used only duct tape and Swiss Army Knife to thwart crime. Part of the rationale for the series was to advocate gun control. After a time, law enforcement officers began to report cases of “MacGyver Crimes,” where criminals used the same techniques as MacGyver to rob and commit acts of violence, and admitted they got their inspiration from watching MacGyver.
2. Some people use Japan as an example of a peaceful nation as a result of strict regulations on firearms, and weapons in general. However, as David Kopel has shown, if you add up murders and suicides, Japan is actually more violent than the US. They just don’t use guns to kill.
On Thursday, January 10, 2013, a 16 year-old high school student entered Taft Union High School in Taft, CA, and fired a 12-gauge shotgun at two boys who he later said had bullied him. One boy was wounded. The school normally has an armed guard on campus, but he was delayed getting to school by snow. The shooter was talked into surrendering by a teacher and campus supervisor.
3. The boy, who has been described as “troubled,” apparently was kicked out of school last year because he was a problem student. However, he was allowed to return this year. In this incident, the gun, who supposedly belongs to his brother, would not have been affected by any proposed gun control measures. Again, there was bullying involved, as well as mental health problems. The President has said repeatedly that he will not try to take away the guns of hunters and sport shooters, so whatever he does in terms of gun bans could not have stopped this incident.
The bottom line is that most, if not all, rampage school shootings are symptoms of social and psychological conditions. If you want to curb school shootings, attack the problem where it begins. Confronting the use of firearms in crime is a very different issue.
If you would like to see how President Obama used his Executive Orders in 2012, there is a website that lists what he did. You can also visit FactCheck.org to see if some claims about what the President did or did not do are valid.
James A. Swan, Ph.D is the Co-Executive Producer of the hit reality National Geographic Channel TV series "Wild Justice"; Producer of the 66-minute documentary "Endangered Species: CA Fish and Game Wardens", as well as the CEO of Snow Goose Productions, LLC, that produces documentaries, book trailers and commercials. James is the author and/or co-author of 10 award-winning non-fiction books about environmental psychology published world-wide in four languages, including two Book of the Month Club selections and Sustainable Futures Society award-winning Nature As Teacher and Healer; and one novel. James has published over 300 articles in major magazines. Prior to the Outdoor Hub he has been a columnist for ESPNOutdoors.com (10 years), and National Review Online (4 years). He has taught at the Universities of Michigan, W. Washington State, Oregon and Washington; consulted with federal, state and local natural resources and law enforcement agencies and lectured all across North America, and in Japan and the UK. As an actor, he’s appeared in 20 feature films including "Jack", "Murder In The First," and “Star Trek: First Contact”; the dramatic TV series -- "Midnight Caller," "Jesse Hawkes," and "Nash Bridges," and over 30 commercials and industrials. He’s consulted with and appeared on the "NOVA," "Ancient Mysteries," "Sightings," and "Modern Marvels," "ESPNOutdoors" TV series and written over 100 outdoor TV shows for Engel's Outdoor Experience, Sports Afield TV and Bushnell's Secrets of the Wild. More at: www.jamesswan.com.
