What were Obama’s executive orders on guns and are they constitutional?

January 23, 2013

Constitution Right to Bear Arms(Editor’s note: After last month’s massacre at Sandy Hook, Washington looks poised to create its first new gun control law in 20 years. Throughout the month of January, we’ll be looking at the history and current landscape of gun control and gun ownership laws.)

Week 1: A right to arms? The real purpose of the Second Amendment

Week 2: Was the Second Amendment intended to be used by or against the states?

Week 3: Would New York’s new gun restrictions withstand Supreme Court scrutiny?

Last Wednesday, President Barack Obama signed 23 executive orders designed to curb gun violence.

Gun rights advocates and some Republicans claimed that the President overstepped his constitutional bounds in so doing, and Texas Representative Steve Stockman said that he would file articles of impeachment against President Barack Obama.

Before we get to their constitutionality, just what were these executive orders?

I don’t have space to describe all of them here (you can check out the full list here), but the orders are geared either toward the goal of enforcing existing gun control laws or “proposing” changes to laws and administrative rules.

Some other orders that don’t fit squarely into either of these goals are:

  • Issue a Presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations;
  • Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes;
  • Nominate an ATF director; and
  • Issue a Presidential Memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence.

These don’t quite sound like the dictatorial declarations of a government on a furious power grab, do they?

The only “dictates” in these executive orders are the ones that direct the issuance of a report of memorandum; everything else is proposals, clarifications, nominations, or incentives.

Nevertheless, gun rights advocates are up in arms over these orders, and for reasons more specific than a general opposition to any restrictions on gun ownership.

First, Obama’s nomination of Todd Jones to the position of director of the ATF (the Bureau of Alcohol, Tobacco, Firearms and Explosives) has many gun rights advocates concerned that Obama plans to revitalize the agency.

The ATF is an organization with the Department of Justice that investigates and prevents the illegal use, manufacture, and possession of firearms and explosives; so what’s the problem with a stronger ATF?

The likeliest conclusion is that many gun rights advocates believe our current level of legal gun restrictions are too much, and should be rolled back; failing that, the enforcement of current gun laws should be as lax as possible.

The ATF has been without an actual director for six years (since the Senate will not confirm one), has fewer agents than it did forty years ago, and is prohibited by federal law from creating a searchable computer database for gun ownership records.

In short, the ATF is currently defanged, and Obama’s looking to change that.

While this may be bad news for staunch gun rights advocates, it’s not unconstitutional in any conceivable way, and is certainly not an impeachable offense.

The other major source of ire from these orders stems from one of the seemingly most innocuous: the Presidential Memo directing the CDC to research causes and prevention of gun violence.

The problem for gun rights advocates arises because the majority of gun violence doesn’t happen through mass shootings.

There were over 4 million firearm injuries between 1973 and 2012, and the vast majority of these injuries were suicides, homicides, and accidents.

Consequently, it is entirely possible, if not likely, that the CDC report will recommend that the answer is less, instead of more guns.

This conclusion runs counter to the narrative of organizations like the National Rifle Association (NRA), which commonly assert that gun violence could be prevented by every law-abiding citizen carrying a firearm; this narrative becomes a much harder sell when there is strong scientific evidence to the contrary.

While it’s now much plainer to see why gun rights advocates find such an order objectionable, it’s not clear how such an order could possibly run afoul of the Constitution.

Actually, it’s unclear how any of these orders, which themselves impose no new laws nor exert any level of control over any agencies outside of the Executive Branch, could possibly run afoul of the Constitution.

Of course, the best way to find out is to see how legal challenges to these orders fare in court – should any ever arise.