Will “Extreme” Gun Control Proposals Require An Executive Order?

It’s good to see that some/any Democrats can see the writing on the wall for new gun control legislation. Speaking on ABC’s This Week, Senator Heidi Heitkamp (D-ND) called the civilian disarmament proposals—rumored to be under contemplation by Senator Joe Biden’s [Gun] Death Panel—”way extreme.” As suggested on this site, a federal national database to track all assault weapons would run smack into the face of the Firearms Owners’ Protection Act (FOPA) which forbids a national database to track ANY firearm. The chances of repealing FOPA are smaller than the chances RF will date Natalie Dadon. Which leaves . . .

an Executive Order directing the ATF to re-classify “assault weapons” as Title II firearms (e.g., machine guns and suppressors). Owners would have to register the guns under the NFA and pay a tax. Currently, that ticket’s $200. Raise it to say $500 and voila! A de facto assault weapons ban without all that messy business of Congressional approval.

Remember: that’s the way Chicago went after the Heller decision knocked down their handgun ban. Led by former White House Chief of Staff and current Chicago Mayor Rahm Emmanuel.

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About Nick Leghorn

Nick Leghorn is a gun nerd living and working in San Antonio, Texas. In his free time, he's a competition shooter (USPSA, 3-gun and NRA High Power), aspiring pilot, and enjoys mixing statistics and science with firearms. Now on sale: Getting Started with Firearms by yours truly!

66 Responses to Will “Extreme” Gun Control Proposals Require An Executive Order?

  1. avataramagi says:

    Can I date Natalie Dadon?

    • avatarMashashin says:

      No

    • avatarPhydeaux says:

      I can totally see Robert dating Natalie Dadon!

    • avatarpat says:

      Babes in gun articles is so natural. A beautiful thing.
      The stinking, evil, libtard morons who are trying to take our liberty (and perhaps in the future, our very lives), not so pretty.

      • avatarjohndillinger says:

        After registration in Russia, they killed every one that registered a gun. Easter 1948, burned or blew up all or most of the churches in Russia. Dont let it happen here.

  2. avatarRydak says:

    Nice to see. With all the imagery and labels this is a hard fight. We need to go ‘common sense’ one people with this one.

    Highlight the downfalls of “well meaning” gun control legislation. IE: Chicago, DC, New York, Canada (rifle registry) and the UK. all of which are poster childs for the failure of gun control.

  3. avatarWildBillKelso says:

    S-e-m-i A-u-t-o-m-a-t-i-c. So that means if it is assembled *without* the gas tube it would be manually operated and thus be legal to posses?

    • avatarmatt says:

      Possession of a gas tube (or piston) however would be constructive intent.

      • avatarmatt says:

        Actually the more I think about it, probably not. If you were to remove the firing pin from a weapon, would that make it no longer a firearm? In the eyes of the law, of course not, you’d have to permanently deactivate it by pluging the bore (and possibly more). So if you wanted wanted to make it legally a manually operated, you’d probably have to weld the gas port in the barrel shut.

        But hey, if you want to reactivate it, they do make clamp on gas blocks, and drill presses arent that expensive.

        • avatarAlphaGeek says:

          Yep. Welcome to the kind of legislative interpretation we debate here in CA all the time. There’s an amazing range of opinions on what constitutes permanent modification of a magazine to limit it to 10 rounds, as a prime example.

        • avatarjwm says:

          Many years ago I saw an article where some country, I believe in the middle east but wouldn’t swear to it, were modifying semi autos to manual operation for civilians. Most of the guns I saw were AK’s. Once altered the guns were legal for people to have even with the 30 round mag. Pakistan maybe? Which isn’t in the mid east but I’m dredging this up from memory.

      • avatarJeff says:

        The word you’re looking for is constructive possession. i know you know that I just wanted to point that out to others

  4. avatarmatt says:

    an Executive Order directing the ATF to re-classify “assault weapons” as Class III firearms
    I assume you mean a Title 2 firearm since Class 3 is a type of FFL or SOT. And how exactly would they modify a law which has strict definitions via a executive order?

  5. avatarimrambi says:

    If an EO comes down, it will same-day be challenged in the courts by SAF that it oversteps the rules of EO that the EO is making laws. There are at least two ways that it can be overturned.

    1. An EO on to reclassify semi-auto rifles would be stepping outside of of the managing of operations within the federal government itself. (Yes, ruling in the southern states and firearm buying forms would be in Obamas favor.)

    2. This would put a $200 tax, by executive order. Only Congress can raise taxes, not the president.

    3. If this passes, what is stopping a pro-gun president from making an EO to reclassify full-autos or suppressors outside of class III?

    I am not a lawyer and I do not play one on TV.

    • avatarCrazed Java says:

      Obama likes EO’s enough that I don’t think he’ll be eager for the battle you describe. If an EO ever gets smacked down it’s going to make it tougher in the future to enact one.

      That’s why I don’t fret over them. Not saying Obama isn’t contemplating it or that he won’t do it, but I also don’t think he’ll rush into one either. EO abuse has been going on since Bush and are almost always overreach, but so far none have been so onerous as to be seriously challenged. At least that I’m aware of.

      Obama can be oblivious to what the country is really like, but he is not stupid. He will protect his power and I doubt he’ll use it in such a way that he’ll see it reduced. That has not been the record of any President in my lifetime.

  6. avatarAlphaGeek says:

    I thought it had been established that it required an act of Congress, not an Executive Order, to redefine the NFA rules that the ATF enforces.

    Also: thanks for throwing gasoline on the “Obama does everything by EO” fire. As if we hadn’t had enough conspiracy theories in the last week. Appreciate that.

    • avatarThomas Paine says:

      that’s what i thought. the rules are explicitly defined in the NFA code.

      • avatarAlphaGeek says:

        Ralph made a great comment recently with a link to an ATF memo on sporting use as it applies to firearms importation, specifically shotguns.

        The ATF language in the memo made it painfully obvious that they are bound by the regulations handed down by Congress, albeit with the duty to interpret and enforce those regulations.

        Given that the ATF’s in-house counsel have to be careful arguing over such minutiae as rails and forward grips on shotguns, it’s just silly to assert that any action of the executive branch could result in an AWB-like reclassification of millions of firearms. Congress would have to delegate rule-making authority to the ATF similar to what the IL legislature tried to do in their recent bills, and there’s no way in hell that’s ever going to happen at the Federal level.

        • avatarGunNut says:

          I happened to have read through that memo a while back, too, and didn’t come to the same optimistic analysis.

          What it sounded like to me was the ATF trying really hard to come up with a justification to ban the importation of shotguns unsuitable for “sporting purposes.” So the arguing over minutiae, as you put it, really wasn’t… it was more of an attempt to create a cosmetic-feature-based ban for imported scatterguns. And I sincerely believe that, had there not been a big public outcry, the ATF would have incorporated those proposed restrictions. Interestingly enough, their definition of “sporting purpose” conveniently neglects competitions such as 3-gun.

          Giving a regulatory agency significant authority to ban a whole class of weapons based on a stretched definition from a forty-year old piece of legislation is not what I’d call good government.

  7. avatarstateisevil says:

    After kicking off WW3 the potus can do an EO doing whatever so guns dont fall into enemy sympathizer hands and to protect children.

    • avatarAlphaGeek says:

      Can I come over to your bunker for a sleepover? We can sing songs and share dark mutterings about the New World Order and how Obama is really a fascist dictator ruling by means of the thousands of EOs he issues every day.

      I’ll bring the marshmallows.

  8. avatarPeter says:

    If they are serious about closing the “gun show loophole”, open up the FBI database to allow anyone to run a background check.
    This whole thing has it’s roots in the Clinton years with the crack down on “kitchen table” sellers. IIRC over half of the FFL holders had their license revoked, this denies access to background checks. At the time there were promises that this would not impact private sales, those of us who did not trust these assurances were called paranoid.
    Well, paranoid or not, here comes the attempted ban on private sales.

    • avatarMike DC says:

      They won’t ban private sales just make you go to walmart or your local gun store and pay for a background check (maybe say $50) before you sell a gun in a hope that it’ll slow private sales. Since your paying for a service it’s not technically a tax. I’m sure they’re also hoping to get gun retailers on their side since they would make some money doing the background checks just like they do now when you have to ship your gun to another state.

  9. avatarGreg in Allston says:

    Murdock vs. Pennsylvania, for one thing. We all know that the 2A means that the People have the God given right to keep and bear arms of contemporary military utility. They can play any semantic games that they want and put a tornado’s worth of spin and BS on their well crafted and reasonable proposals, that will never change the underlying and fundamental meaning or purpose of the right itself.

    • avatarmountocean says:

      I don’t understand the connection you’re drawing with Murdock vs. Penn and military utility. I suggest Miller vs US covers that ground.

      • avatarGreg in Allston says:

        Murdock boils down to a prohibition on the .gov charging a fee to exercise a fundamental right. The NFA tax was a work around against the 2A that has yet to be challenged. We’re working in a very dynamic environment right now. Bide your time and watch this space. I was just on the phone with a friend who is a genius. No details right now, but his idea is an absolute game changer, totally unprecedented.

  10. NJ has handgun registration, and so does NY. How does that fly in the face of the Firearm Owners’ Protection Act?

  11. avatarready,fire,aim says:

    an Executive Order directing the ATF to re-classify “assault weapons” ….ok here we go again what the F%#k IS AN “ASSAULT WEAPON??..a knife is an assault weapon…a baseball bat, crowbar, steel rod, pencil, pen they can all be used as a so called ASSAULT WEAPONS…

  12. I want to see some push back in the form of pro-2A politicians start proposing some state/federal legislations to get rid of gun free zones. Where are the pols doing that?

    • avatarDirk Diggler says:

      there was a proposal in the House to do just that.

      HR 133 – Thomas Massie (R-KY)
      To repeal the Gun-Free School Zones Act of 1990 and amendments to that Act. Referred to the House Judiciary Committee
      source: http://www.onlygunsandmoney.blogspot.com/2013/01/lots-of-bills-filed-in-congress.html

      • avatarDonS says:

        States’ laws are probably more important than the federal GFSZA – since most states are shall-issue and the fed. GFSZA does not apply to people with concealed carry permits (issued by the state where the school is located).

        For example, my Colorado CHP means the federal GFSZA doesn’t apply to me. However, Colorado law still says I cannot carry on a K-12 campus.

      • avatarRalph says:

        Massie tried it before, but his bill never made it out of committee. This one won’t either. It challenges people’s belief systems — which never works.

      • I want to see things like that popping up in states all over. We keep seeing anti-2A proposals pop up everywhere and I’m tired of being on the defense and feeling like we’re going to be forced to give up something. Many pro-2A pols have even voiced willingness and desire to institute a mag capacity ban.

      • avatarDarren says:

        According to the GFSZA, it appears that you can be federally charged for discharging a firearm on school premises even if you a) have a concealed carry permit issued from your state and b) are shooting a would-be mass murderer.

        Awesome bit of legislation there. Just another part of the federal program to enable mass murderers and inhibit the sheepdogs of the world. If the BHO folks wanted to really get pissy about armed parent volunteers or teachers with CHLs at schools after a shooting interrupted by people with legal CHLs, they could still take the shooter to court and have them facing a federal felony and 5 years.

  13. avatarTaurus609 says:

    Two things. One, I will reiterate , everyone needs to email or call your representatives, state and federal, democrat or republican, do not leave any stone unturned. This is too important to just sit idly by and take the stand that if your rep is a democrat it won’t matter and if they are a republican you don’t need to…yes you do!

    And two, I sure hope the NRA isn’t sending LaPierre (SP) to the meeting! I mean I’d rather see Larry Pratt speak for us!

    • avatarjwm says:

      Colin Noir, Tom Sellack anybody but Wayne.

    • avatarRalph says:

      James J. Baker, the director of federal relations for the NRA, will be representing the NRA in Thursday’s meeting with Biden.

      • avatarTaurus609 says:

        Thanks Ralph, but please tell me he’s not just another Wayne LaPierre, and can articulate our side without going tinfoil hat crazy. I’m sorry, and yes I know it’s part of the reason for the second, but I cringe every time I hear someone on our side make reverence to protecting us from tyranny in an interview! It turns off so many on the other side, that could be persuaded by the rationale and facts from our side.

    • avatarPascal says:

      This evening is the general meeting for The CCDL

      The Connecticut Citizens Defense League is a non-partisan, grassroots organization devoted to advocating rights affirmed by the Constitutions of the United States of America and the State of Connecticut. We are especially dedicated to protecting the unalienable right of all citizens to keep and bear arms, for the defense of both self and state, through public enlightenment and legislative action.

      We welcome anyone who believes that the defense of our constitutional rights is critical to the longevity of our freedom and to the success of this nation, and in particular that the rights to self defense and to keep and bear the arms to actualize that defense, are fundamental and undeniable.

      http://www.ccdl.us/

      If you are a TTAG CT member and are free this evening, please go to the meeting and help organize the fight for CT gun owners in the upcoming CT legislative session.

  14. avatarDavid says:

    I may be off on this (cue 2a lawyers) but I believe there is strong state and federal court precedence ( I believe even scotus) that possession of equipment/accesssories to make a firearm class 2, class 3, or against state law is in itself not a crime. So, possession of a 14 inch rifle barrel is in itself not a crime if it is not attached to said firearm when the man comes. Anyone care to weigh in?

    • avatarJim Barrett says:

      Not a 2A attorney, but there is a body of case law on “constructive possession”, but it’s a tricky thing. To give you an example, let’s say that I own an AR-15 pistol with a 10 inch barrel. If I also own an AR-15 rifle, that is not a problem. On the other hand, if I purchase an AR-15 lower, but have no “legal” upper, the ATF could charge me with constructive possession of a SBR. They did just this in a case in Florida where a guy was selling an H&K SP89 pistol for which he also owned a shoulder stock. The SP89 was not registered as an SBR at the time. He tried to sell it to an undercover cop and was arrested and charged with constructive possession of an SBR. Case details here: http://blog.princelaw.com/2009/09/01/florida-man-arrested-for-constructive-possession-of-an-sbr/

  15. avatarSertorius says:

    I keep hearing this “executive order” thing batted around, but the relevant definitions are statutory (meaning they were enacted into law by Congress). They cannot be overridden by executive order or ATF regulation. Here is the relevant law:

    http://www.gpo.gov/fdsys/pkg/USCODE-2011-title26/pdf/USCODE-2011-title26-subtitleE-chap53-subchapB-partI-sec5845.pdf

    Can someone point to a legal analysis of exactly what the proposed executive order would say that would get around this fact?

  16. avatarLance says:

    I dont think he will use a EO for this because he would have done this already right after Newtown. Also talk on EO was countered by progun GOP Reps in the House that will cut ATF funding to ZERO to enforce such a ban.

    Remember to call and email all Reps and Senators and say NO!! We won in liberal Illinois we can win in DC too.

  17. avatarPowers says:

    I always try to be realistic and which I was more optimistic. But I can’t get a read on this whole thing. Something tells me that little if anything will get through, because of the mass population of responsabile gun owners putting up a fight by contacting their representatives, making calls, etc..but I still have a nasty gut feeling that Obama will use Executive Orders, and not just on this. And that frankly does more than scare me, it has me incredibly worried for the future and what would happen in a worst case scenario. With the Supreme Court so unpredictable, I can’t shake that nasty feeling. But it can’t be wished away. Back to emails and phone calls.

  18. avatarJamie in ND says:

    Don’t be fooled by Heidi Heitkamps rhetoric, she’s a liberal & will fall in line with the gun ban crowd.

  19. avatarMike DC says:

    The Supreme Court ruled in Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) that Executive Order 10340 from President Truman placing all steel mills in the country under federal control was invalid because it attempted to make law, rather than clarify or act to further a law put forth by the Congress or the Constitution. Most EOs on gun control, especially any ban/taxes would easily fall under making a law instead of furthering it. I’m sure the President realizes this and will try something else.

  20. avatarTotenglocke says:

    The chances of repealing FOPA are smaller than the chances RF will date Natalie Dadon

    *Ahem* Need I remind you boys that you also said similar things about the chances of anti-gun legislation being introduced and supported by the Messiah?

  21. avatarHillbilly Rebel says:

    Sooo… a semi auto “assault weapon” would be as illegal as a full auto machine gun.
    Why wouldn’t I drill the hole and put in the full auto sear? If I know my life is going to be ruined with a weapons violation wouldn’t I be more likely to use it to put up a fight? Maybe someone should explain unintended consequences to these gun grabbers.

  22. avatarBadjujuu says:

    ago

    Seriously I am standing by to hear someone in the media say that owning guns is rasict. ext anyone who owns guns is a rasict, just like now anyone who criticizes obama is a rasict.

    • avatarJoke & Dagger says:

      Some of guys sound awfully confident. Have you not yet realized that the Progessive’s will stop at nothing to achieve each item on their agenda, including gun control? They don’t give a $hit about law and precedent. The ends justify their means.

  23. avatarpat says:

    Executive Order. There could be a real chance that some wacko would try to assassinate our ‘dear leader’, thereby turning him into the ultimate martyr, thus setting gun rights back GENERATIONS because the gun grabbers whould become GODS.

  24. avatargunfighter 2012 says:

    I really enjoy coming here and reading that we shouldn’t go tinfoil hat crazy over this stuff. Gives me quite a chuckle. Just wait till it gets to be a national security issue and the alphabet soup police come out of the woodwork and whisk you away. Or if by some small miracle the upcoming tax and budget show does push any new legislation to the back burner and the current burning need to do something does fade a bit; what will they do next? What tragedy will be manufactured that will be so horrible as to irreversibly sway public opinion; so awful that to deny “immediate” action would be unconscionable.
    Something will be done under this administration. And don’t think for a minute our “rights” will stop them.

  25. avatarSoccerchainsaw says:

    The last guy in that clip said something like: “gun show loophole blah blah blah, insane getting Bushmasters & AR15′s which we know are a problem”

    Hello? Mister! Anybody home? Bushmasters and AR15s are not a problem. Bad people doing bad things with a variety of tools are a problem. But what do we expect? They throw out questions on those Sunday morning talk shows and the guests basically ignore the question and use it as a springboard for their planned talking points. I really can’t stand to sit through an entire 1/2hr of that BS. Even in that segment above did you hear the lady senator dodge the question. From what I heard, I think I agree with her position but do we really know what her position is? Of course not. They must be required to take a course in “weasle-word-ology” before getting elected. “Can’t pin me down!”

  26. avatarSilver says:

    To all those who say he won’t use an EO or can’t use an EO (as if there’s anything the powers that be can’t do these days unchallenged) here’s some morning coffee for ya.

    http://www.weeklystandard.com/blogs/biden-obama-might-use-executive-order-deal-guns_694984.html

  27. avatarWendy Weinbaum says:

    As a Jewess in the US, I can only say that ANY anti-gun plan from an ignoramus
    like Slow Joe Biden or his dirty Kenyan boss is bound to be a loser idea.
    Certainly it will make all REAL Americans put our 2nd Amendment FIRST! Both
    criminals and overbearing governments respect FIREPOWER, not sweet talk. And
    remember that America wasn’t won with a registered gun! -Wendy Weinbaum

  28. avatarBHirsh says:

    Can’t do it. It would materially intrude on our right to keep and bear firearms indentified by SCOTUS precedent as protected weapons.

    U.S. v. Miller established a two-pronged test to define what small arms enjoy constitutional protection. In ruling that since no evidence had been presented to the Court to prove that the sawed-off shotgun in question was an arm “in common use” that bore “some reasonable relationship to the preservation or efficiency of a well-regulated militia”, or was “part of the ordinary military equipment”, the Court could not say that keeping and bearing it was protected by the Second Amendment. In doing so, the Court set in precedent the test that now determines what arms are protected. Fully automatic small arms fail to meet the first prong of that test, but semiautomatic small arms meet both, as do their component parts. There is no dancing around this.

    Any such action would be met with an immediate and succesful injunction, followed by a permanent striking of the order.

  29. avatarMax says:

    It has been aledged that the Goverment drugged and then planted the thought to kill , in the guy that commited the Sandy Hook shotting, so they could start what Obama wanted all along, which was this very SH!T right here. They are looking for any way to get your personil information, and what weapons you own, as a way to come and take them away. Its the same thing Hitler did in Germany befor WWII, and we all know how that turned out! HEIL OBAMA…….I DONT THINK SO!!!!

  30. avatarDougded says:

    The reason the idiots and deliberates that want us disarmed have a chance of being sucessful is exampled here by the complete chaos of comments and sillyness. Hey folks you better get focused and start standing together or they will be successful. instead of commenting on all these articles you should be e-mailing every Senator and Congressman and tell them you won’t tolerate them trying to destroy the rights the Constitution guarrntees and you won’t give up your guns. Forget trying to talk to Obama, he’s doing exactly what he wants, ruining our Republic.

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