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Old June 18, 2012, 12:32 AM   #1
BarryLee
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Executive Orders & Gun Rights

Often I hear people say that a President can not restrict gun rights because the Congress would never pass these laws. This is always used by firearms enthusiast who vote for an anti-gun candidate for the White House. I personally have always accepted this and felt pretty comfortable that the Congress most likely would not pass any major anti-gun legislation. However, recently I noted some of the Executive Orders that have been issued and this got me wondering if a President could issue an executive order for instance reducing magazine capacities, banning “assault rifles”, restricting concealed carry or other restrictions.

So, for those of you that are more students of the Constitution than I could a President issue such executive orders?
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Old June 18, 2012, 01:20 AM   #2
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Already been done

First Bush banned importation of certain semi auto rifles, by executive order, if I remember correctly. Thats when those funny "thumbhole" stocks showed up, to make the legal criteria for import.

Now,could the Pres just order what you suggested? He could, but would run into a lot of flak from the legal folks, all over. Not the least of which would be Congress, who is very jealous of their power in this area.

The Pres can order almost anything, even suspension of the Constitution and martial law. Whether the order gets to stand, or even be carried out depends on many things, especially what, who, and where it affects.
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Old June 18, 2012, 06:18 AM   #3
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Its very doubtful that any president would ban guns by executive order. The president need not do that. The BATFE has wide latitude under the the GCA 1968 to regulate guns that are deemed to have no "sporting purpose". Despite this glaring anti-gun "loophole" in the GCA 1968 our 2nd Amendment "supporters" in congress have no stomach for revising that law.

The first administration to ban the importation of a long gun under the "sporting purposes" clause of the GCA 1968 was headed by "the gunowners champion", Ronald Reagan. In 1984 the Reagan BATFE banned a South African shotgun from import. In 1986 the Reagan BATFE banned another semi-auto shotgun from import. BTW: After he left office, Reagan joined Carter, Ford and Clinton in shilling for the "assault weapons" ban.

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Old June 18, 2012, 08:50 AM   #4
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Quote:
The president need not do that. The BATFE has wide latitude under the the GCA 1968 to regulate guns that are deemed to have no "sporting purpose".
No, the President may not be the only one to can cause more restrictions, but given the BATFE hasn't, he could.
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Old June 18, 2012, 09:50 AM   #5
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On Martial Law and suspension of the Constitution the SCOTUS ruled in Milligan

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"If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."
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Old June 18, 2012, 10:25 AM   #6
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Beware politics.

Stick to the technical legal issue and past precedents and events.
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Old June 18, 2012, 12:32 PM   #7
BarryLee
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Sorry if my OP was not clear I realize that in times of emergency the President has wide latitude to implement restrictions. I was really thinking of a more normal environment and not a time of significant national emergency. Also, I was not really referring to the actual banning of guns, but lesser restrictions like magazine capacity or carry restrictions. Basically if an order could be issued to simply execute a policy change that the Congress would not implement.

I suppose the general consensus seems to be that although unlikely a President could legally issue executive orders restricting the Second Amendment.
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Old June 18, 2012, 03:22 PM   #8
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It should be mentioned that Executive Orders are not used to make laws. They are generally used to clarify or affect enforcement.

The Supreme Court has overruled over-reaching orders in the past, and I doubt Congress would react very warmly to them either.

To that end, Presidents are usually pretty conscientious about citing particular laws that support a given order. If I were in the Oval Office, and I wanted to pass an order restricting the 2A in some way, I'd have a hard time finding laws that back me.
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Old June 18, 2012, 03:28 PM   #9
Bartholomew Roberts
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As far as what the President can legally accomplish by Executive Order, he may only use Executive Orders to implement authority that has been delegated to him by Congress (via law) or that was delegated to him by the Constitution.

From a Second Amendment perspective, one continuing problem has been that the 1968 Gun Control Act bans many firearms from importation and/or manufacture if they are deemed "not suitable for sporting purposes." However, Congress has never defined that term and has left the decision on whether they are suitable for sporting purposes up to the Secretary of Treasury/Attorney General (pre-Department of Homeland Security/post-DHS).

To use an example everyone here can understand, any firearm with a bore of greater than 0.50" is considered a Destructive Device and must be registered under the 1934 NFA the same as a Machinegun or Suppressor, UNLESS the Attorney General determines it "particularly suitable for sporting purposes." So basically, the Attorney General has the power to arbitrarily declare any shotgun, imported or domestically manufactured, a "Destructive Device." Congress doesn't need to pass any laws to do this; they already passed the law delegating such authority in 1968.

And the ATF has subsequently used that authority to ban several shotguns. More alarmingly, under this Administration, the ATF submitted a proposal for a "sporting purposes test" for shotguns that would have turned tens of thousands of domestically-manufactured shotguns into NFA weapons.

That kind of overreach would almost certainly provoke a response from Congress; however, it is much easier to keep legislation from passing Congress than it is to pass a new bill - so it could prove difficult for Congress to revoke or clarify their "sporting purposes" language should that happen. This is but one more reason why killing that clause in any way possible should be a high-priority.

Quote:
Originally Posted by Thallub
The first administration to ban the importation of a long gun under the "sporting purposes" clause of the GCA 1968 was headed by "the gunowners champion", Ronald Reagan. In 1984 the Reagan BATFE banned a South African shotgun from import. In 1986 the Reagan BATFE banned another semi-auto shotgun from import. BTW: After he left office, Reagan joined Carter, Ford and Clinton in shilling for the "assault weapons" ban.
You may have forgotten our previous conversation, linked above, but the USAS-12, Striker 12, and Streetsweeper shotguns, were banned by ATF Rulings 94-1, 94-2 in 1994, long after Reagan had ceased to be President. Perhaps you could clarify the specific ATF ruling and the shotguns it banned; because I couldn't find one from the Reagan-era?

Last edited by Bartholomew Roberts; June 18, 2012 at 03:35 PM.
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Old June 18, 2012, 03:49 PM   #10
thallub
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Quote:
This is but one more reason why killing that clause in any way possible should be a high-priority.
Exactly.


Quote:
Perhaps you could clarify the specific ATF ruling and the shotguns it banned; because I couldn't find one from the Reagan-era?
Could not find an 80s era BATF ruling on the Striker-12. The 1984 ruling is mentioned in BATF ruling 94-2:

Quote:
In 1984, ATF ruled that the Striker-12 was not eligible for importation under section 925(d)(3) since it is not particularly suitable for sporting purposes. In making this determination, the 1984 letter-ruling notes that the Striker was being used in a number of “combat” shooting events. In a letter dated June 30, 1986, ATF again denied importation to the Striker-12, on the basis that it did not meet the “sporting purposes” test of section 925(d)(3). This letter states that, “We believe the weapon to have been specifically designed for military and law enforcement uses.”
USAS 12: See BATF ruling 85-10

This will not direct link. See page 129:

johndschultz.com/wp-content/uploads/2009/04/atf-rulings.pdf

Last edited by thallub; June 18, 2012 at 05:00 PM.
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Old June 18, 2012, 05:06 PM   #11
Bartholomew Roberts
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According to the ATF's own rulings, those shotguns were classified as Destructive Devices by ATF Ruling 94-1 and 94-2, and not during the Reagan era (see Page 146 of the PDF linked above).

The ATF did classify the following semi-automatic pistols and pistol-caliber "rifles" as NFA firearms during the Reagan era: KG-9 (Ruling 82-2), SM10, SM11A1, and SAC (Ruling 82-8), YAC Sten Mk III (Ruling 83-5). However, all of those classifications were based on defining said firearms as machineguns rather than relying on the sporting purposes clause. If you look at this list of ATF Rulings: (http://www.atf.gov/regulations-rulings/rulings/) the only rulings covering importation of firearms issued during the Reagan Administration are 80-8 (Applications to import non-sporting firearms for LE use; must include LE purchase order), 81-3(Importation of firearms of U. S. Citizens acquired abroad), 85-2 (NFA weapons imported for LE samples must have some LE purpose) and 85-10 (Frames and receivers alone of C&R weapons are not eligible for C&R importation).

Senator Craig's staff's research aside, the first example I can find of the sporting purposes clause being used to deny importation of a firearm based on the sporting purposes clause is Ruling 69-309 which among other things explains that military service members may not import rifles and shotguns which are of surplus military origin and must meet the sporting purposes requirement.

I see we are both typing at the same time...

Quote:
USAS 12: See BATF ruling 85-10
No, Ruling 85-10 deals with importation of frames and receivers only for C&R firearms.

It may be that Senator Craig's staff have access to a Private Letter Ruling from the ATF; which is basically when you have a question on legality and write the ATF requesting an opinion on what you are about to do. The letter is good only for the recipient and those rulings are unpublished - which would make it near impossible to find unless the guy who received it decided to self-publish.
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Old June 18, 2012, 05:16 PM   #12
thallub
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Read BATFE ruling 94-2:

Quote:
In 1984, ATF ruled that the Striker-12 was not eligible for importation under section 925(d)(3) since it is not particularly suitable for sporting purposes. In
making this determination, the 84-198 letter-ruling notes that the Striker was being used in a number of "combat" shooting events. In a letter dated June 30, 1986, ATF again denied importation to the Striker-12, on the basis that it did not meet the "sporting purposes" test of section 925(d)(3).
Sorry, you need the expanded 94-2:

Nothing links. Google up ATF ruling 94-2: Select the BAFTE link:

Last edited by thallub; June 18, 2012 at 05:44 PM.
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Old June 18, 2012, 05:58 PM   #13
Bartholomew Roberts
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Based on the description of the ruling as a "letter-ruling", I would guess that is a private letter ruling denying importation.
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Old June 18, 2012, 06:19 PM   #14
thallub
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Quote:
I would guess that is a private letter ruling denying importation.
Methinks you are correct. Was the NEOSTEAD shotgun banned or what?

http://battlefield.wikia.com/wiki/NeoStead_2000
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