At the White House today, President Obama introduced his plan to curb gun violence in the aftermath of the Newtown tragedy. His package included both proposed legislation and executive orders, most of which would fall under the heading of “gun control” measures, although there are some mental-health proposals as well. In advance of his announcement, there was considerable speculation, mostly fueled by Vice President Joe Biden, about how far the president might go in limiting guns by executive action, and whether he might encroach upon the legislative prerogatives of Congress, run afoul of the Second Amendment, or both. At least with his “Executive Actions,” the president did not overreach.
The 23 “Executive Actions” signed by the president today are actually quite measured, and seem to be within his constitutional authority to take care that the laws are faithfully executed. Some of the actions are noncontroversial if rather mundane, such as maximizing enforcement efforts to prevent gun violence and prosecute gun crimes, while others are more ethereal, such as releasing reports from the Justice Department analyzing information on lost and stolen guns and new gun-safety technologies; and launching a national dialogue on mental health led by the secretaries of education and health and human services. Overall, one questions whether any of the 23 executive actions ultimately will have an impact on public safety, or be relegated to the bottomless dustbin of government “commissions,” “reports,” “task forces,” and “reviews” that litter Washington, D.C.
The president also called for the nomination and confirmation of an ATF director. This is obviously within the president’s authority and should be noncontroversial as well. Unfortunately, this position has been tied up in the larger political controversy surrounding gun control and, as the president noted, the Senate has not confirmed a director in six years. (The president failed to note, however, that he did not offer a nominee until nearly two years into his term.) In the absence of a Senate-confirmed leader, the ATF has had serious problems, to put it mildly. The president should present his nominee, who should be vetted, get a hearing within a reasonable time, and, if qualified, get confirmed. The political battle over gun control will continue regardless, but at least the agency will have proper leadership. Maybe it would help the ATF trace guns recovered in criminal investigations — ironically, another of the new executive actions — which it was unable to do in the Fast and Furious operation.
The executive actions signed by the president also include a number of “research projects,” which should have no immediate impact but bear watching for their future policy implications. For example, the president has directed the attorney general to review categories of individuals prohibited from having a gun to make sure “dangerous people” are not slipping through the cracks. This language is sufficiently vague to bear watching to see how the Justice Department defines and identifies “dangerous people.” There already are specific categories of people statutorily disqualified, by more or less objective standards — i.e., felons, illegal aliens, “adjudicated” mentally defective persons — from possessing guns. It is unclear whether the intention is to add to that list or to identify people within that list who may nevertheless find a way to obtain guns wrongfully.
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The president also directed the Centers for Disease Control to study the causes and prevention of gun violence, “including investigating the relationship between video games, media images and violence.” (This being the only reference to the entertainment industry, Hollywood got off easy today.) The White House took pains to note that “public-health research is not advocacy,” but given reports from congressional oversight investigations of hidden deals between the administration and the pharmaceutical industry for the pharmaceutical industry to advocate for passage of Obamacare, we’d be wise to observe who will be carrying the water for the CDC’s eventual recommendations.
Otherwise, the president appropriately referred proposals to limit guns, particularly “assault weapons and high-capacity magazines” with more than 10 rounds, to the legislative process. Through that process — guided, it is to be hoped, by thoughtful consideration of what restrictions possibly might be effective in improving public safety and consistent with the limitations that the Supreme Court suggested would pass constitutional muster in D.C. v. Heller — something will or will not get passed. I’ll leave the political prognostications to others, but members of both the House and Senate have been publicly dubious.
Nevertheless, there is reasonable support politically, and room under the Heller decision legally, for reasonable restrictions on “dangerous and unusual weapons” consistent with the Second Amendment to be enacted. Notably, although its effectiveness was highly questionable, an assault-weapons ban did pass in 1994, and was not challenged constitutionally. Expanding background checks and enhancing anti-trafficking penalties would seem to have the best prospects among the president’s core gun-control proposals, because they are rooted in present laws. But the definitional battle over what weapons and ammunition would be covered by a ban on “assault weapons” and certain ammunition will be brutal, perhaps insurmountable. Rather than pursuing blanket bans on loosely defined “assault weapons,” taking the Charlton Heston “from my cold dead hands” approach, or exploiting children as political props, the president, Congress, and the NRA should be guided by only the following two questions: (1) will this action decrease the risk of gun violence and improve public safety; and (2) is it constitutional? If the answer to either of these questions is “no,” than the proposal should not move forward, no matter how strong might be the urge to “do something” in the aftermath of the slaughter of 26 innocents.
– Scott A. Coffina is a former associate counsel to President George W. Bush and a former assistant United States attorney. He currently is a partner at Drinker Biddle & Reath.