The sudden death earlier this month of Supreme Court Justice Antonin Scalia, who was an unapologetic supporter of firearms rights, has thrust the 2nd Amendment into the forefront of the burgeoning debate over who might replace him on the Supreme Court. While this is indeed a topic worthy of robust debate, what often is overlooked in such public discussions of the 2nd Amendment, are the many ways this Administration has chipped away at the Amendment outside the scrutiny of the courts.
Since assuming office in 2009, Barack Obama has employed the resources of numerous agencies and departments -- most of which have no colorable jurisdiction over firearms – in an often unnoticed drive to weaken the ability of law-abiding citizens to exercise their right to “keep and bear arms,” without openly attacking the 2nd Amendment.
This approach most recently was on display last month, when Obama unveiled a list of “executive actions” to “curb gun violence.” At a carefully-orchestrated CNN “town hall meeting” a few days later, the President hogged the microphone and repeated over and over that he “respects the Second Amendment,” and that his only goal is to take “sensible” and “common sense” steps to keep guns out of the hands of criminals; not to limit the ability of others to obtain and possess firearms. Were it only so.
The reality is, many of the firearms-related measures this President has taken during his seven years in office, bear no relationship whatsoever to “common sense,” or to his avowed goal.
For example, an Administration initiative begun in 2013 employed the Federal Deposit Insurance Corporation – yes, the FDIC – to intimidate banks into severing ties with companies that dealt in firearms, because the FDIC now considered such businesses to be “high risk.” The FDIC’s actions were backed by no less an enforcement arm than the United States Department of Justice. This thinly-veiled effort to enlist an agency with no firearms-related jurisdiction whatsoever into punishing companies dealing lawfully in firearms, is a perfect example of Obama’s modus operandi.
Although congressional oversight of the FDIC’s “Operation Choke Point” forced the Administration to back down somewhat, the message was clear – “if you are an industry regulated by the federal government, we can and will use that regulatory power to limit your ability to engage in lawful firearms transactions.”
An even longer-running component of this strategy involves pushing the Centers for Disease Control and Prevention (CDC) to expand its reach far beyond “diseases,” to regulate firearms on the theory that “gun violence” constitutes a “public health issue” (the same basis by which federal agencies have regulated tobacco). The Department of Health and Human Services? The Administration has enlisted them, too, in its gun control crusade. The State Department as well. The list goes on and on.
All of these efforts are in addition to the manner in which Obama regularly has employed the one federal agency with explicit jurisdiction over firearms – the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) – to expand its reach beyond that which Congress or the Constitution intended or contemplated.
Which brings us to the most recent presidential “executive actions” announced last month. Most important was a move to expand the universe of firearms transactions subject to the federal background check. The way Obama is attempting to circumvent federal law – which clearly and explicitly does not require the occasional, non-commercial transfer of a firearm from one person to another to be run through a federal database – reveals the insidious manner in which this Administration operates.
Obama knows he cannot legally alter the definition in federal law of who is a “dealer” in firearms. And he realizes that unless the make-up of the Congress changes drastically, Congress will not pass such legislation. So, what he once again has done is to obfuscate and intimidate. The 15-pages of presidential “guidance” for gun sales, clearly is designed to intimidate anyone -- other than someone regularly engaged in the business of buying or selling firearms, and who is therefore a “dealer” under the law -- who contemplates selling a firearm (at a gun show or elsewhere) into believing they are. The Administration’s hope is to cause such individuals either not to sell the firearms, or convince them to register with ATF as a dealer even though they are not required to do so currently.
There is much more to this craftily concocted scheme by Obama to make it increasingly difficult to purchase, sell, or even possess a firearm lawfully; we’ve just scratched the surface here. John Yoo and Dean Reuter with the Federalist Society have recently edited and published Liberty’s Nemesis – The Unchecked Expansion of the State; a book that offers a much more comprehensive (and frightening) exposition of the myriad ways in which this Administration is using executive power to limit individual liberty and circumvent to will of the Congress.