Opinion

Are Obama’s executive actions on guns legal?

President Obama wipes a tear Tuesday at the White House as he speaks on reducing gun violence.
President Obama wipes a tear Tuesday at the White House as he speaks on reducing gun violence. AFP/Getty Images

It’s not surprising that Republicans have responded fiercely this week to President Obama’s executive actions on guns. The right responds fiercely to even the suggestion of making weapons harder for Americans to buy. Actual measures were sure to bring the he’s-coming-for-our-guns crowd to full froth.

(It was a little surprising – although maybe it shouldn’t have been – how some on the right mocked the president’s emotional speech Tuesday. FOX News personality Andrea Tantoros might have discovered new depths of tastelessness for the network when she suggested Obama had some help – a raw onion, maybe? – to produce fake tears when he spoke of the children killed in the mass shooting at Sandy Hook.)

One common thread in the guns response: Obama’s executive actions were lawless. “This is going to be another illegal action,” said Republican candidate Chris Christie, even before Tuesday’s speech. Later, other candidates concurred:

The objections, however, have been somewhat unspecific. Some are suggesting that the executive actions in themselves might be unconstitutional. That includes U.S. Rep. Patrick McHenry of North Carolina, who said in a statement Tuesday that Obama was “flouting the Constitution and expanding his executive powers.” But every full-term U.S. president has used executive orders. The last two, Obama and George W. Bush, have actually averaged fewer per year than any president in the last century.

As for the legality of the executive actions on guns, even Obama critics are skeptical that the courts will block or overturn anything the president announced this week.

“I don’t see anything lawless here,” George Mason University law professor and author David Bernstein, a self-described “vocal critic of the Obama administration’s dubious assertions of executive authority,” wrote for the Washington Post.

Fellow Obama critic Josh Blackman, an associate professor and constitutional law expert at South Texas College of Law, came to a similar conclusion in an item-by-item analysis on his blog. “At first blush this is extremely underwhelming,” Blackman said.

The early consensus among experts is that the iffiest of the executive actions isn’t the one that’s getting the most pushback – the expansion of background checks for occasional gun dealers. It’s an order that would prohibit people with certain mental illnesses – specifically those that render them unable to manage their own finances – from owning guns. Says Blackman: “(The Social Security Administration) will go through the rulemaking process for this one, as it includes certain due process rights for those denied the right.”

One dissenting legal voice: Andrew P. Napolitano, a FOX News analyst and former Superior Court judge in New Jersey. Napolitano argues that the president explicitly ignores the wishes of Congress by requiring background checks for buyers of guns sold by occasional dealers.

Most experts, however, seem to believe that Obama is on safe legal ground in clarifying that gun sellers – even if they’re occasional – are still gun sellers. That means they’re subject to federal firearms laws, as well as executive actions, no matter how lawless some think they are.

Peter St. Onge

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