Gun Lovers Freak Over Obama’s Executive Actions

The right-wing critics of Obama’s executive actions reveal their ignorance of history and law, writes Adam Winkler.

Damian Dovarganes/AP

As our first national Gun Appreciation Day arrives (isn’t every day in America Gun Appreciation Day?), it’s worth a closer look at the constitutional arguments made by conservative opponents of President Obama’s gun-control proposals.

Listen closely to the predictable fulminations against President Obama’s recent moves to reduce gun violence, in part through executive action. Conservative blogs and Fox News have been filled with indignant protests over Obama’s “abuse of power” and the manifestation of “tyranny” by the “power-grabbing” president. Sen. Rand Paul went on the Christian Broadcast Network to accuse Obama of acting like a “king or monarch.”

But when you scratch even a little beneath the surface of all the hyperbole, one thing becomes clear: The president’s actions don’t violate the Constitution; they only violate his critics’ political positions. In fact, based on the nature of the outcry, it’s Obama’s most strident foes who could use a lesson in the Constitution. Or, as Andy Borowitz jokingly (but not inaccurately) put it this week, “Republicans Accuse Obama of Using Position as President to Lead Country.

There are two issues here. The first relates to procedure, the second to substance.

On procedure, Obama has earned ire by proposing a series of 23 executive actions to improve public safety. Mike Huckabee said Obama has “nothing but contempt for the Constitution” and is willing to “trump” the “checks and balances of power in which no branch could act unilaterally.” GOP Rep. Steve Stockman threatened to pursue articles of impeachment against the president if he pursues gun regulation through executive order.

It is difficult to take these arguments seriously, but we’ve already learned that when Republicans can’t beat a Democratic president at the ballot box, they’re more than ready to impeach him. So let’s go through it one more time: Executive orders are commands the president gives to administrative agencies under his charge to take some type of action. They can be used to implement existing federal statutes the president is responsible for enforcing, and to carry out the president’s constitutionally granted powers, such as his role as commander-in-chief. The legal status of the president’s power to issue executive orders couldn’t be more clear. Presidents dating back to George Washington have issued executive orders. And the Supreme Court has clearly and consistently held that executive orders are constitutionally permissible.

Obama’s critics don’t seem to care that he has in fact issued fewer executive orders than any president in a century—including George W. Bush. (Remember him?) Yet now that Obama may want to use executive orders to do something his foes don’t like, they insist that such actions are a profound threat to democracy itself. This is despite the fact that the president’s executive actions don’t even rise to the level of “orders”; most are only recommendations to agencies or promises to do things that every president does, like nominate an agency head (here, to the Bureau of Alcohol, Tobacco, Firearms and Explosives, which has been without a confirmed chief for years).

The second issue is substantive: Critics accuse the president of violating the Second Amendment by his executive actions and proposed legislative fixes, like mandatory background checks. But presidents have long issued orders in these areas, including the first president Bush, who limited the import of assault weapons. And the president—whoever he is—continues to be charged with enforcing numerous pieces of gun legislation, like the Gun Control Act of 1968 and the Brady background check law.

Furthermore, none of Obama’s legislative proposals are likely to be held to violate the Second Amendment. While the Supreme Court held—for the first time, remarkably, in 2008—that the Second Amendment protects an individual’s right to possess a firearm, the Court’s decision made clear that the right was “not unlimited.” Indeed, the Court suggested that most forms of gun control, including bans on concealed-carry and restrictions on possession by felons and the mentally ill, are constitutional. The author of this gun-control-friendly decision? That rabid leftie socialist Antonin Scalia.

In other words, there is no doubt that universal background checks are constitutional. Critics counter that the First Amendment freedoms are not limited like this, but the analogy doesn’t fit. Unlike free speech, which everyone enjoys (including corporations and non-citizens), the right to own a gun is more limited. The Second Amendment allows the government to completely bar felons, children, the mentally ill, and others from having a gun. A better analogy would be the right to vote or the right to marry. Since not everyone enjoys those rights, the Supreme Court has held that government can require people to register to vote, or to obtain a license to marry. Universal background checks simply make effective the longstanding limits on criminals and mentally ill people from accessing firearms.

Bans on assault weapons and high-capacity magazines have also been upheld as consistent with the Second Amendment. Last year, in a decision by two conservative, Republican-appointed judges, the U.S. Court of Appeals for the D.C. Circuit—the level just below the Supreme Court—upheld Washington, D.C.’s ban on assault weapons and high-capacity magazines. That court held that these bans did not meaningfully burden anyone’s right to have a firearm for self-defense. Assault weapons are not typically used for self-defense, and law-abiding citizens confronted with danger don’t need more than 10 rounds in a magazine. It may be that these bans won’t drastically reduce criminal violence or mass shootings, but that doesn’t mean they’re unconstitutional.

Perhaps the greatest irony here is that it is opponents of Obama’s gun proposals that seem to disregard our Constitution. In states like Texas and Wyoming, gun-rights extremists are pushing their legislatures to enact laws declaring new federal laws on guns unenforceable. Yet the Constitution unambiguously declares the “laws of the United States . . . shall be the supreme law of the land.” This provision was specifically intended by the founders to prevent states from interfering with national legislation, and yet for some reason, the right-wing outrage machine has remained silent on these clearly unconstitutional state efforts.