By Emily Taylor
As of March 2021, President Joe Biden had already signed 37 executive orders. Recently, he confirmed that he’s looking at his options for executive orders to control firearms.
“Can we expect any gun control executive orders soon?” he was asked at a press conference on March 26.
“Well, we’re looking at that right now,” he responded. “We’re looking at what kind of authority I have relative to imported weapons, as well as whether or not I have any authority to—these new weapons that are being made by 3D equipment that aren’t registered as guns at all, there may be some latitude there as well.”
Now, after much delay and anticipation, comes reports that the President will announce executive orders impacting gun rights tomorrow.
— National Shooting Sports Foundation | NSSF (@NSSF) April 7, 2021
The President’s attitude toward the Second Amendment hasn’t been met positively by the majority of people across the country. According to an ABC/Ipsos poll from March 28, 2021, 57% of Americans disapprove of how President Biden is handling gun violence.
But it doesn’t stop there. He’s being pressured by lawmakers to take executive action—such as reclassifying the Ruger AR-556 pistol as a rifle—and fast. White House Press Secretary Jen Psaki told reporters that executive orders were in the President’s playbook.
“When the President was the Vice President in the Obama-Biden administration, he helped put in place 23 executive actions to combat gun violence,” Psaki said at one of the daily press conferences. “It’s one of the levers that we can use—that any federal government, any President can use to help address the prevalence of gun violence and address community safety around the country.”
With 37 executive orders already on the books, will he sign one on gun control? If so, how might a potential executive order affect you, the law-abiding gun owner?
The Authority of the President
The President of the United States of America has the ability to issue executive orders. In fact, executive orders can be traced all the way back to this country’s first President, George Washington. An executive order is a means of issuing federal directives by the President to manage the operations of the federal government. The legal or constitutional basis for executive orders has multiple sources.
The authority of the President to issue an executive order is not expressly stated in the United States Constitution, but rather implied. This implied power comes from Article II, Section 1, which states: “The executive power shall be vested in a President of the United States of America.” Furthermore, Section 3 of Article II states that the President “shall take Care that the Laws be faithfully executed.”
In some cases, the President has statutory authority to issue executive orders, as codified in Title 3 of the Code of Federal Regulations with the force of law. Although the President does not need Congressional approval to issue an executive order, Congress can revoke an executive order by enacting new laws subject to the President’s veto power or withholding federal funding. Executive orders are not, however, without limitations and are subject to legal review by the federal courts and the U.S. Supreme Court.
The Extraordinary Power of Presidential Orders
Although executive orders are directives to the government and federal agencies—rather than individuals—many historic examples demonstrate the impact on individual rights. If an agency is forced to change a policy because of an executive order, then that policy can directly affect the average American.
In the many years since our founding as a country, there have been some noteworthy executive orders issued by Presidents that greatly affected people; some severely limited their rights under the Constitution and seem outright antithetical to our American ideals today. Here are some noteworthy examples:
- President Harry Truman: Faced with a massive strike by the steel industry during the Korean War, President Truman signed Executive Order 10340 on April 8, 1952. This order allowed the Secretary of Commerce to take possession of certain American steel mills and ordered all federal agencies to assist as necessary in the plant and facility seizures. This was quickly ruled by the Supreme Court to be unconstitutional.
- President Woodrow Wilson: Demonstrating that executive orders can impact specific aspects of life—even hunting—through Executive Order 1884, President Wilson made hunting with the use of a “lantern, torch, bonfire, or other artificial light” a misdemeanor offense. Furthermore, Wilson signed many other executive orders covering hiring, anti-corruption efforts, telegraph and wireless services, and postal crimes, and he even got involved in the day-to-day operations of the Panama Canal Zone… all by executive order.
- President Abraham Lincoln: President Lincoln took a drastic and controversial step to sign an executive order that suspended habeas corpus and the right of the accused to report unlawful detention. This was done to stop a Southern-sympathizing legislator from blocking the movement of Union troops to Washington, which was virtually undefended at the start of the Civil War. While the initial order only allowed for warrantless arrest between Philadelphia and Washington, D.C., President Lincoln also suspended habeas corpus and imposed martial law in Kentucky on July 5, 1864.
- President Franklin Delano Roosevelt: Through Executive Order 9066, President Roosevelt authorized the detention of more than 110,000 Japanese Americans. Taken mostly from the West Coast, approximately 60% of those interned were American citizens who were denied the right of habeas corpus and placed in detention facilities because of their Japanese ancestry.
Gold, Guns, and Presidential Orders
Another noteworthy FDR action occurred on April 5, 1933, when President Roosevelt signed Executive Order 6102, requiring Americans to surrender their gold (other than gold jewelry, gold coins, and a very small amount of gold bullion) to the government for payment of the then prevailing value of the gold surrendered.
If you could be forced to surrender gold by executive order, is it a stretch to think that guns could be handled the same way?
To date, a mandatory buyback has never been attempted. One failed 2020 presidential candidate memorably proclaimed during a debate in Houston, “Hell yes, we are going to take your AR-15, your AK-47.” Could this candidate have been thinking of a possible executive order?
Beyond executive orders, the President has other executive powers such as issuing a proclamation and/or memorandum. A recent example of this is the banning of bump stocks. In 2018, President Donald Trump used his executive power, through memorandum, to require the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to ban bump stocks by changing their regulations.
Of course, President Trump is not the first to use his executive power to restrict firearms. After the Sandy Hook Elementary School shooting in 2012, President Barack Obama issued several executive actions involving gun control. These actions included:
- Directing federal agencies to share background check information with one another.
- Giving money to the states for sharing background check information.
- Reviewing the criteria of who should be prohibited from purchasing, possessing, or transferring firearms and ammunition.
- Launching a “safe and responsible” gun ownership campaign.
- Requiring federal law enforcement to trace guns recovered in criminal investigations.
- Clarifying that doctors, under the Affordable Care Act, may ask their patients about guns in their homes.
Executive orders are a powerful tool of government that can easily change depending on the particular Commander-in-Chief and their desired policies. What will Biden do with his power?
With over half of Americans polled voicing their disapproval on how President Biden is handling gun laws, your guess is as good as ours. But given his recent comments, law-abiding gun owners should brace themselves for executive orders that might possibly impact their daily lives.
Emily Taylor is a partner with Walker & Taylor, PLLC.