Girls Just Wanna Have Guns has an interesting piece by guest blogger Chris Wagoner; DEAR AMERICA: Should Donald Trump ACCEPT This Executive Order on the Second Amendment? In it he suggests that the President use his executive powers to “clarify” the meaning of the Second Amendment, the meat of the order being:

Section 3. Definitions. As used in this order, the following definitions will apply:

– The term “militia” is as defined in Title 10, Section 311 United States Code. Inclusive of State Statute definitions.

– The term “bear arms” is to include the physical possession and carrying, both concealed and openly, of firearms of the type defined herein.

– The term “self-defense” shall include actions taken by citizens to defend themselves and fellow citizens from physical attack.

– The term “military-style arms” will include those types of firearms that would serve well for use in the military defense of the nation, to include firearms that have been used in the past and present in the United States’ active military forces and fully functional replicas of said weapons, both semi-automatic and fully automatic. This includes both pistols and rifles.

I have two relatively minor and one major quibble with this executive order (hereinafter EO because yes, I am just that lazy), the first minor one being that it is United States Code Title 10, Chapter 12, § 246 which defines the composition and classes of the militia.

My second minor quibble is the age and sex restrictions in § 246; you can be sure that that antis would seize on these to argue that A) the EO is sexist and ageist and therefore unconstitutional and 2} the moment that a militia member turns 45 they would have to turn in their guns.

Which brings us to my major problem with Chris’s EO: although it is, to quote the antis, a “good first step,” it doesn’t go nearly far enough and provides the antis with far too much wiggle room to limit our natural, fundamental, and inalienable, human, individual, civil and Constitutional, right to own and carry the weapon of our choice.

First, by limiting “bear arms” to possession and carrying, the antis will argue (and probably find some quisling judges to agree) that this does not include ownership, merely possession. In other words, you can’t own these scary guns and keep them in your house, they need to be locked up in an armory. But you can certainly check them out whenever you want, as long as it is Monday – Friday, 9AM to 3PM, excepting lunch times (10AM to 2PM), all federal, state, and local holidays, and as long as the LEO in charge is not needed for other more important duties like meter enforcement.

Also, when you go to pick up “your” militia weapon, don’t forget to bring three forms of photo ID as well as a credit card for the $50 “check-out fee,” the $1500 “security deposit” (90% of which will be refunded after a thorough inspection to ensure the weapon is undamaged), and the $75 “check-in fee.”

We also can’t risk firing inexpensive poor quality ammunition in these state-owned weapons, so you’ll have to purchase the government inspected and approved militia-grade ammo at only $5/round. And of course, since all of us gun nuts keep talking about how much ammunition we need to practice with, the minimum allowable purchase would be 500 rounds so you can get in the practice you need.

In addition, once the ammo is out of government hands it obviously can’t be certified as “militia quality” any longer, so unused ammunition can’t be returned for a refund. Nor can it be used for later practice sessions, so every time you want to practice with “your” weapon, you’ll need to buy more.

Next, limiting the definition self-defense to responding to physical attack gives the antis the opportunity to argue that you must wait for such an attack before you can claim self-defense. In other words, if someone comes at you with a knife you can’t shoot them until they have actually struck you. I have also heard some anti-self-defense people argue that rape without violence is not a deadly attack, therefore people should not be permitted to use deadly force to repel or stop a sexual assault.

Finally limiting militia weapons to “firearms that have been used in the past and present in the United States’ active military forces” can be interpreted far too restrictively for my taste. Let’s change that to firearms and accessories that have been used in the past or present in the United States’ or any other nation’s regular or irregular military forces, including all copies, duplicates, variants, and fully functional replicas of said weapons, both semi-automatic and fully automatic. This includes pistols, shotguns and rifles.

And just for fun, I would throw in one more bullet point:

– The definition of “sporting purposes” shall include all types of sport and competitive shooting and all “military style” and semi-automatic rifles, shotguns and handguns are hereby deemed suitable for sport shooting.

Now if we could get the President sign such a revised executive order, that would be a “good first step.”

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53 Responses to ‘Clarifying’ the Second Amendment by Executive Order?

  1. How is it even possible to “clarify” the unambiguous meaning of …the right of the people to keep and bear arms shall not be infringed? The complexity of the phrase is inherently irreducible.

    • The entire concept of “compelling government interest” must be eradicated. Obviously the courts consider the Second Amendment subject to restrictions like any other “right”. A formal declaration of what “infringement” means, over time, is lost to the fog of history. A new statement is necessary.

      Unfortunately, EO/EA are good only so long as the Executive remains in office, or so long as the political price of the EO/EA does not put at risk the political future of the Executive.

      • The Student Association attorney who taught our Education and Constitutional Law class proposed a higher classification than compelling: “critical state interest”, defined as necessary for the security of the nation. She held that all enumerated and SCOTUS-established rights should be guarded at such a level, and I agree.

        • Somewhat agree, however the grabbers keep trying to inflate their position using words like “epidemic” and similarly histrionic terms. Perhaps not during this administration, but sometime in the future the word “critical” is likely to be defined in the loosest possible sense to let the grabbers grab because they claim a crisis.

          Since the Second Amendment is the only one in the Bill of Rights which prohibits “infringement” without restriction, why don’t we just strike down laws which infringe?

        • If it’s such a critical state interest then I am sure we can get an amendment passed to change the constitution to allow that. Otherwise any infringement is an infringement despite the gov’ts reasons for infringing on that right.

        • Roymond – that just makes it worse. This “balancing test” state interest game which the sainted Scalia just made worse is a big part of the problem. Judges want to play at being judges and have invented all kinds of tests to give themselves something to rule on. Scalia baited the opposition by saying there were some proper regulations on firearms and citing the whole military thing (note U.S. v. Miller says only militia/military weapons are protected. Now, we have the 4th Circuit running wild. Get back to interpreting what is an infringement is. After Gorsuch’s opening questions on the Supreme Court, I have hope.

    • When they wrote the bill of rights the second amendment should have been written as “Congress, the Legislative Branch, States and all other forms of Government within the United States shall not construct any law, nor modify any preexisting law, or impose any fee, tax, or other charge that could in any way limit the People’s right to bear weapons of any type, form, caliber, and/or size.”

      Let’s see the Democrats poke holes in that!!!

      • So they actually wrote that exactly, “shall not be infringed” means the same thing. No person, judge or organization shall infringe or limit the rights enumerated above

        However, to your last sentence where there’s a will

        • Well, there is that whole “due process” thing in the constitution that allows for denying constitutional rights.

    • My sentiments exactly. It says what it says and means what it means. No clarification by another branch of government necessary, just do your job and protect it.

  2. Why all the equivocating?

    Simple:
    “Insofar as the Second Amendment to the US Constitution prohibits any government infringement on the right of the people of the nation to “keep and bear arms”, this clarification determines that any weapon that can be used in personal, group, militia, uniformed armed services qualifies as “armament” under the Constitution.

    No action may be taken by federal or other government entity or agency that prevents the free purchase, sale, transportation by any means, use for any lawful purpose such as personal defense of self or others, unless a person bearing such armament be formally adjudicated by a civil or military court as a person to be prohibited from bearing such armament. Such “prohibited person” designation will be immediately lifted upon completion of any incarceration, public service in lieu of incarceration. In such cases, the cognizant court that adjudicated the person “prohibited” arms shall immediately restore such persons full rights under the Second Amendment.”

    • An EO cannot contradict or attempt to supersede federal law. Federal statutes define who is prohibited, and no EO can change that. Therefore the rights of felons to possess firearms or ammunition cannot be restored by EO, any more than the rights of persons involuntarily confined to a mental institution or convicted of a crime of domestic violence. That is solely in the purview of congress, unless and until the Supreme Court says otherwise.

      • Not according to the Bloomberg-sponsored Governors and legislators of Virginia and Maryland, both of whom restored rights to convicted felons using pardons. Together, they allowed almost a half-million felons to vote just in time for last year’s election.

        The felons immediately tried to get their gun rights back and Bloomberg’s people denied that part. Seems Bloomberg just wants the votes, not the full package of rights.

      • Yeah, got carried away. The EO/EA could require the BATFEXYZ-And anything else to monitor felony convictions where gun rights are removed, and then present the courts with affidavit requesting restoration of gun rights upon completion of sentence. Maybe even that is too far.

      • Unfortunately, congress is filled with both invertebrate Republicans and Democrats who refuse to understand the law as written, and want to continue to take rights away in the name of bigger government.
        Under those people, Obama’s frequent re-writing of the ACA were not challenged, and allowed to stand, in complete contradiction to the law and constitution.
        It would seem, then, that what you say about the EO not being able to contradict federal law is obviously not being upheld by those who are supposed to uphold it.
        Unfortunately, if any non-Democrat were to try the same thing, the Democrats, and even some Republicans, would certainly raise a real stink.

  3. I wouldn’t be surprised if a few days before the speech at the NRA that Trump signs an executive order dealing in some way with guns, lead bans, magazine capacity restrictions, etc.

    • Actually, lead bans have been reversed under Trump already. But don’t let your own ignorance get in the way of the truth, there, mr Truth.

  4. Such a ‘clarification’ would be meaningless at best.

    I say at best because imagine if the next democratic party president can ‘clarify’ the Bill of Rights in such a meaningful way?

    • Best not to go down that road at all. The president already has way too much power via executive order as it is.

      We don’t need Trump to fiddle with the interpretation of the Second Amendment, however well intentioned — and we sure as hell don’t want to hand that kind of precedent to the next Democrat to occupy the office.

      What we need is to kill the federal bureaucracy with fire. The fact that we’re even talking about the president “fixing” constitutional right via executive order is a nightmare scenario already.

      • Amen….. you are 100% right. EOs are not an appropriate way to fiddle with or address the 2nd Amendment or any other Amendment. And they have been recently heavily misused, also not a good precedent to continue with.

  5. The only thing he could possibly clarify is law. Could he clarify the Heller decision? I have no idea, but in the majority opinion it states guns like the fully automatic military M16 doesn’t have a place in civilian hands. Other rulings say guns in common usage are fine. States are banning guns in common usage. Trump could clarify that all weapons in use by our police departments are in common usage for all civilians. As our police are not part of the military and are civilians all weapons they use are civilian defensive weapons.

    • No, it says no such thing, no matter what Ms. Feinstein would like to believe. It says it is not ruling on any such issue, and that nothing in the opinion should be read as overturning existing law, which laws are presumed lawful.

    • Scalia’s “firearms in common use” is total crap. All the Bill of Rights says is “arms”. Historical analysis shows that that means “Their swords and every terrible implement of the soldier are the birthright of Americans.” Tench Coxe Pennsylvania Gazette, Feb. 20, 1788.

  6. This is dumb. He should issue more effective orders about how laws are enforced, and curtailing current restrictions. That’s what EOs are meant for. They are orders on how the Feds carry out their mission. They are not new law and should not be treated as such. This is just confusing and WAY to easy for some liberal anti gun lawyer to exploit. Meanwhile, the real victories come when WE PRESURE the GOP to actually pass favorable laws. Those hold real and lasting weight. If they fail to do so then we must make them pay in the primaries.

  7. NO! The President has no business “clarifying” a constitutional amendment, and even the thought should be abjured, as it sets a precedent for the next president to do the same. Why on earth would we want one man (or woman) to determine how our constitutional rights should be interpreted? BAD BAD BAD idea.

  8. An EO for such a thing would be just fluff — the next president could change it at a whim.

    Far more productive would be a vote of Congress declaring the definitions understood by the Framers and instructing federal courts to so interpret it. In that framework, declaring the militia to be “the whole people”; keeping arms to mean home or other place of residence, business, and means of conveyance; bearing arms as meaning carrying on one’s person in whichever manner the person judges appropriate; and noting that “infringed”covers not just the right itself but all related matters, and “shall not” limits not just government but all entities — that would be useful.

  9. Have these people learned NOTHING by watching the Trump administration slowly disassembling the largely-built-on-EOs “Obama legacy”? EOs are good for darn-near nothing, long term.

    Get some legislation written and get it moving. For starters, I’d suggest something along the lines of “Required ID to exercise a citizen’s Second Amendment rights (carry/purchase/transfer of firearm(s)) must be equal to the required ID a citizen must show to vote in a local, state, or national election.” Let the lefties sort THAT one out with their constituents and supporters.

    • Oh, that would be epic-grade trolling right there… every one of my teeth are bared just thinking about the liberal heads exploding over that one.

  10. Um, if your desired governing strategy centers around bypassing the entire existing legal structure…why not just ask for outright revolution?

    Let’s leave the EO’s for the areas of law they’re actually meant for, and fix the laws the way they’re meant to be. Trump could eviscerate all import rules, 922r, and loosen many state-level enforcement practices which reciprocate federal ones in an instant.

    In the time it takes to write a tweet; “sporting purposes include all lawful purposes for firearms enforcement.”

    But he won’t, because why the hell should he? Most gun owners will continue to support him regardless his action or inaction, because they are battered wives and have come to expect no better. No, they can’t even *conceive* better treatment.

    • You hit the nail right there. Republicans in general and Trump in particular don’t actually need to *do* anything for the guns wing of the voting base; those votes are locked up for the foreseeable future.

  11. Fun idea.

    I think it would be far more effective to make the Executive Order direct the ATF to effectively disappear. Use the EO to clarify their function to sit down, shut up, and leave the Citizens alone.

    I think it would be even more effective than that if the EO were to suggest that those who would try and infringe on anyone’s Second Amendment Rights could be considered guilty of Treason and subject to the existing laws regarding same.

    But what do I know, I just make the copies.

  12. One important “clarification” not mentioned is to point out that “arms” in this context means “weapons” which includes knives, swords, billies, slung shot, brass knuckles, and more. It is bizarre to contemplate having my right to own, keep, and bear firearms recognized by the State but not the same right to carry a knife with a blade longer than some arbitrary limit.

  13. I would quibble with the article’s quibble on age and sex “restrictions”.

    Those restrictions are only restrictions on who may be pressed into service or “drafted”. It doesn’t say that women or men under 17/over 45 can’t join, but only that they are not within the pool that is eligible for what might be termed “conscription” and therefore can’t, under penalty of law, be forced to join.

    If you’re 56 and want to join, have at it, but the government can’t attempt to compel you to do so. Ergo, concerns about anti arguments are overblown.

    Besides antis will always pull some BS argument out of their rear anyway. Worrying about what crazy nonsense they might spew in the future is a waste of time because no matter what you do or say they’ll make up something, call it common sense, and argue it in public.

  14. Anything short of a federal preemption law is worthless. Executive Orders have become a joke that every imperial president thinks they can use to rule like a king.

    It’s time to weaken the president until they are back to their originally intended position and make it so that congress actually has to pass laws to get things done again.

  15. We don’t need easily reversible & ambiguously worded EO’s that can be interpreted all sorts of ways by politicians & judges with an agenda. This would set a very dangerous precedent, the Bill of Rights is a very clearly worded document, the meaning of which is obvious to anyone with half of a functioning brain cell.

  16. No president has the right to define anything in the constitution by executive order. If its done by a pro second amendment president then it could be done in the future by an anti second amendment president. We have a constitution expressly to prevent this kind of over reach which is what leads to tyranny. Just because we might agree with it doesn’t make it legal or wise!!!

  17. We don’t need an EO to clarify anything.
    What we need is to, on a local level, take our rightful place in our local schools. We need to examine the syllabi that our schools use, and end=sure they actually teach what is needed to know, instead of what the SJWs want taught.
    Too many of our judges, at all levels, are results of such SJW teaching. They have no idea of what “infringe” means, and have been taught that the government knows best, and language is “living,” even in the constitution, so what any given law says (even specific portions of the constitution) can be interpreted by today’s standards (and, as we have seen, not even those standards in the US, but in foreign countries).
    This is why, even thought he 2A says, “The right of the people to keep and bear arms shall not be infringed,” is is deemed by the courts perfectly OK to infringe to the point where it has been illegal for a non-prohibited person to even own, much less carry, a firearm. This is entirely because lawmaker and judges do not understand what words meant when they were used.
    Look at “inflammable.” I remember seeing this word painted on gasoline tankers (which dates me, I know). While it meant, literally, ‘not able to burn’, everyone understood it to mean ‘really burnable.’ Then that understanding was changed by education, so not those trucks, if labeled the same way, would say “Flammable,” but instead they carry a small diamond-shaped sign that is smaller, and often in code. This is supposed to be “better.”
    I digress to make a point: “infringe” just doesn’t seem to mean what it once did, unless one uses an actual dictionary.
    A “fringe” was something that went around the edge of something; think of the song, “A surrey with the fringe on top.”
    The fringe went AROUND t he edge of the top. When something is said to infringe, it means it attacks on the edge. When something in law (or constitution) says, “Shall not be infringed,” it means is is not allowed to be attacked even at it’s edges.
    Our legislators and judges do not understand this, because they have been educated by SJWs who say any words are “living” and change with time, which isn’t true of written words, or even of words that were spoken in the past, but only of words spoken *now*. Certainly not of words written over 200 years ago, which must be seen in the meanings they had when written. Thus, “infringe” does not mean we can make any rules we want, and simply proclaim that they don’t “infringe” because the meaning has changed.
    Education. It’s where we have failed. And where we need to fix this.

    • No, SCOTUS has not defined what the 2A meant, it has only ruled on a few cases that have been brought to it. Those cases were narrow in scope, and did not define the 2A, only what the 2A means (now) in those cases.

      • There are only two realistic ways to “define” the second amendment: a) legislation putting gun ownership and possession cases outside judicial review (Congress has the constitutional power to do so, but no guts….and legislation can be overturned); b) amend the constitution to further define 2A, or add an amendment making RTKBA absolute, and beyond judicial review.

        Yes….I know….neither option is truly “realistic”.

  18. The chief executive can “clarify” the interpretation and application of laws, within the executive s/he oversees. “Clarifying” that agencies and authorities should interpret the law a written, and understood by the courts would be a nice first step.

    No, “the law” isn’t anything you can try to ram through some “understanding” of a law, stretched beyond all recognition, but just daring anyone to undertake the financial grind, and character assassination to oppose the land grab. “Agencies” being party to interpretation lawsuits make me twitch anyway. The parties are one bunch of citizens who think it should be one way, and another bunch who think another. Agencies are … er … agents. They have no standing or interest on their own. Indeed, citizens who work in them more or less check their standing at the door when they go to work.

    Really, rolling back administrative legislation buy other means would be a good first step. I’m looking at you IRS, AFT, NSA, EPA, and Depts of Interior, Ed and Justice.

    I don’t know entirely how to square this circle, but I have a vague though experiment where an agency or court ruling, rather than contorting their way through existing law to get what they want, would rather flat out say:

    “Declined. As written, the law says *this.* If you want to get what you want, and incidentally what I prefer, policy-wise, the law needs to say something like *that. So, have at the political process, citizens, and get back to us when something has changed.”

    Gorsich came pretty close to exactly that in a couple decisions I read, and both (the late) Scalia, and Clarence Thomas have done the same. Perhaps as close as they can get, within standards of judicial behavior. (Not that any behavior seems to restrain the notorious RBG.)

  19. It’s NOT a left or right thing people and that’s where everything is getting mixed up. We need to focus and stop blaming a party because truth be told the Republicans don’t want you or me to have guns either. There is a reason they move so slow or hardly move at all , think it’s not illegal yet.

  20. A well-regulated Militia BEING SO WHOLLY IN THE UNZIPPED FLY OF THE GOVERNMENT IT NEEDS TO SH_T-CAN cannot be the force needed to sh_t-can every POS swinging di<K that constitutes "your government".

    SO

    If you need to "throw off" the old guard and establish a "new guard" Per Paragraph 2 of the Declaration of Independence (you know, the Document that the Constitution was written to fulfill, and we're essentially on our 3rd version and they still don't get it) you cannot rely on the self-same government for the permission, personnel, or equipment. AND YES, it's going to take whatever you can muster, up to and including nuclear weapons.

    No, an EO isn't needed. IF THE MF'S CAN'T UNDERSTAND WHAT'S PREVIOUSLY BEEN ESTABLISHED, YOU CANNOT COUNT ON ANY OF THEM TO UPHOLD ANYTHING ELSE. We have no 'ruling class' in America, we still have a harbor, and we can muster up some tea. Sic Semper Ignoramus.

  21. NO.

    An EO means nothing, except to direct the existing administration department directors. In such a case, just direct them to eliminate any and all gun regulations not codified into LAW by Congress and/or clarified by the SCOTUS. If a regulatory agency, such as ATF, is going to infringe on a protected civil right, it should be codified by our elected officials, not by faceless bureaucrats. NFA rules are a good example…

    Anything else will just be thrown out in the next administration, or will actually be interpreted by Dark State leftovers in ways not intended.

  22. The Fourteenth Amendment does not just apply to former slaves.
    In Section 1 it says, in part,
    “…No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; … ”

    That should strike down laws in at least 30 states, New York, New Jersey, California, Hawaii, Illinois, Massachusetts, Connecticut.

  23. Here is a bigger problem with federal definitions of RKBA and other 2A related discussions. The Bill of Rights was written as a prohibition on the federal government. It was not written to bind the states which had their own constitutions prior to the federal constitution. It was not written as a “maybe'” or “should.” It was written to keep the new government the states created from interfering in or abridging these particular rights. It didn’t matter that several states had a state religion at the time of the Constitution’s ratification, the states deemed this new government would have none of that. It didn’t matter that speech was not completely free in some states, this new government would not be able to interfere with the freedom of political speech. In short, the Bill or Rights tells the federal government that they are out of the discussion, they have no seat at the table on these eight prohibitions.
    When you allow for the federals to determine the meaning of the Bill or Rights, you empower them beyond all intended proportions. When you accept the legal hoax of incorporating the B or R against the states, you empower the federals to not only define their own power, you release them from the chains that were shackled upon them by the framers and ratifiers. So, an EO to clarify the 2A? Not necessary and not even lawful. It says what it says and is binding on the federals only. You want the federals to be the liberty umpire? Then you get Scalia saying the 2A has limitations, as he did. You want the federals to be the liberty umpires and hold the B of R against the states, the very creators of the B of R? Then you get your state constitution over ridden, you get your state laws overturned by federal judges. You get government by judiciary. You get a centralized, all powerful government that no only determines it’s own power, it determines how much liberty you may have and parcels it out accordingly.
    Gun owners are the worst when it comes to this in their rabid 2A is my gun permit mind set. The 2A is NOT your gun permit. It is a prohibition that says the federal government has zero input into the RKBA. Your state is another story. So, strengthen your state laws, get back to federalism and stop going to the federal government with your damn hat in your hands looking for them to give you something that is already yours as far as they are supposed to be concerned.

    • Oh….don’t forget the not so subtle repeal of the 10th Amendment. You know, the one that says the national government has only those powers specifically delegated by the states. The subsequent amendment that made states mere political provinces of the national government.

    • If you think that “strengthening state laws” is a solution to government overreach, you need a reality check. The RI Constitution goes even further than the federal Constitution. The 2A equivalent in RI reads: “The right of the people to keep and bear arms shall not be infringed.” Period. No well-regulated, no militia, no security of free state – “shall not be infringed.” Now try to get a carry permit in Warwick. Or through the AG’s office before your gun rusts. See if you can get a silencer anywhere in the state. Try to buy a pistol without a week’s wait – in RI terms, 8 days. No rules on paper are obstacles to determined meddlers in the personal freedoms of the people, as long as the re-election campaign check is big enough. It’s your check against their check. Period. Principle finds no harbor in the dark heart of the politician.

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