The civilian disarmament industrial complex and their sycophants in the legacy media have been making much of President Trump’s “true friend and champion in the White House” statement to the NRA. But the fact is, we’ve seen lots of talk and very little real friendly action from the Trump Administration thus far. “But wait,” the apologist in the back says, “you can’t blame the President for lack of Congressional action. And besides, we got rid of Obama’s fiduciary trustee = ‘mentally defective’ rules!”
That’s part of what I meant by “very little” action. Furthermore, there’s a metric ton of thing the President can do via executive orders alone. Here are a few suggestions:
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to guide the executive branch in formulating and implementing policies it is hereby ordered as follows:
1. The Bureau of Alcohol, Tobacco, etc. is hereby directed thusly:
a. Any machinegun purchased or transferred under the auspices of the National Firearms Act is deemed to be “posses[sed] … under the authority of” the BATFE, thereby satisfying the requirements of 18 U.S.C. § 922(o). This order specifically and explicitly includes machineguns manufactured after May 19, 1986.
b. In accordance with the 1968 amendments to the National Firearms Act, there will be an amnesty registration period every year, from January 1st through April 1st.
c. The BATFE will have 30 days to process any NFA transaction. Failure to complete a transaction within 30 days will result in the refund of all taxes and fees to the transferees and issuance of a default registration letter stating that the NFA items in question are legally possessed even if they are not entered in the National Firearms Registration and Transfer Record.
d. The definition of “sporting purposes” shall include all types of sport and competitive shooting. All “military style” and semi-automatic rifles, shotguns and handguns are hereby deemed suitable for sport shooting.
e. To reduce the price of a Federal Firearms License to $5.00/annum. Such licenses shall be issued to anyone who is not a “prohibited person” under state or federal law .
f. No FFL will be investigated or prosecuted for any administrative or paperwork violations absent provable criminal malice.
g. All stages of all interviews with people who are or might be under investigation shall be videotaped. All aspects of all weapons testing shall be videotaped and narrated by the testers, explaining what they are testing for and what procedure they are using. Failure to provide defendants and defense attorneys with 1080p quality video and audio of all pertinent interviews and tests shall render all results inadmissible at trial or administrative proceedings.
2. The Department of Justice and Attorney General are hereby directed:
a. To inform all police agencies and prosecutors across the country that the DoJ has determined that Article IV, § 1 of the United States Constitution, known as the “full faith and credit clause” applies to state issued firearm carry permits. Any state agents who harass, detain, arrest, or prosecute an individual carrying a firearm in accordance with local restrictions under any state’s carry permit, shall be prosecuted under 18 U.S. Code § 242, deprivation of rights under color of law or authority. If the state agents are armed then the enhanced punishment of up to 10 years in prison will be invoked; if the victim is imprisoned then the enhanced punishment of any number of years in prison or life will be invoked.
b. To investigate and prosecute all government agents who aided and abetted the Obama administration’s transfer of thousands of guns to Mexican drug lords under the auspices of “Operation Fast and Furious” for violations of international laws and treaties, and for complicity in the deaths of 200 or more Mexican nationals.
c. To enforce the Safe Passage provision of the Firearm Owners’ Protection Act by investigating all government agents involved in the detention and arrest of people traveling in accordance with the FOPA. Any agents who have violated the Safe Passage provision should be prosecuted under 18 U.S. Code § 242, deprivation of rights under color of law or authority.
d. That any ammunition defined as “armor piercing” under 18 U.S.C., § 921(a)(17)(B) is, ipso facto “primarily intended to be used for sporting purposes” *unless* such a round will, when fired from a pistol with a barrel of no more than 4 inches (not including recoil or sound suppressor) can pierce 1 inch of HY-100 steel (or its equivalent) at 200 yards.
e. To investigate and prosecute all BATF agents who followed the (videotaped) advice of Thomas Busey (then Chief of the NFA Branch) to commit perjury and testify that the NFTR is 100% accurate. Likewise, to investigate and prosecute (or dismiss as incompetent) all federal prosecutors who permitted such perjury.
f. When prosecuting any firearms violation under BATFE rules and regulations, all federal prosecutors are required to inform the jury, just prior to any official testimony and as part of their closing statement, that a former NFA Branch Chief explicitly directed his agents to lie under oath, and neither he nor any agents who committed perjury suffered any sanctions for doing so.
g. When prosecuting any firearms violation under BATFE rules and regulations, all federal prosecutors are required to inform the jury, just prior to any official testimony and as part of their closing statement, that the BATFE once stated in an official letter that a 14-inch long shoestring was a machine gun.
3. The Transportation Security Administration is hereby directed that any pilot or aircraft crew member who is an honorably discharged veteran or possesses a permit to carry from any state is deemed to have satisfied all criteria for inclusion in the Federal Flight Deck Officer program will be authorized to carry a firearm in all Airport Security Zones and aboard any aircraft in any manner they deem fit.
And finally, just to show that I loves me all my civil rights, not just those protected by the Second Amendment:
4. The U.S. Customs and Border Protection Agency is hereby directed not to exercise the “border search exception” to the Fourth Amendment with regards to any traveler’s electronic devices; if you want to crack someone’s smartphone or laptop, get a warrant.
These are the sorts of things that a real friend and champion of civil rights and the Second Amendment would do.
Well, Mr. President, we are waiting.…
Trump is a lame duck, and you don’t realize it yet.
With another Supreme court vacancy rumored to be on the near horizon, he really isn’t a lame duck. In the long run, if all we get out of Trump is two new SCOTUS justices that skew our way on the 2A, that is a lot to be thankful for. At this point my expectations are low for everything else.
That’s pretty much my outlook on this.
That was the point to the entire election, right there.
Now all we have to do is pray he stays to the Right, and doesn’t feel some political need to go squishy with his appointments between now and 2024.
Ginsberg and Breyer are on deathwatch.
That’s the winning comment right here. I and many others hate Trump. He is big government/anti-freedom on most issues. That being said, if he is able to get 2-3 constitutional originalists on SCOTUS and stack the lower courts with like-minded individuals I am willing to put up with 4 years of his idiocracy.
I’m willing to put up with 8 years of Trump if he continues to nominate judges and justices who will follow the constitution.
Worst case scenario is that he learns to govern and does so as a “moderate.” Best case scenario is that he learns to govern and focuses on shrinking the government. Most likely scenario is he never learns to govern, and the federal government runs mostly on auto-pilot for his tenure.
“The best government is that which governs least.”
Well, of course he’s a lame duck. He’s only got 8 years.
Madcapp, are you stupid or just can’t keep up!!! Don’t bother to respond I already know where you come from…..
Let’s see–he already got to appoint one SCOTUS justice, Kennedy, Breyer, and Ginsburg are ancient.
It’s highly likely Kennedy will step down during this administration, if only to ensure another constitutionalist placed on the court for the long term to offset the Kagan and Sotomayor debacle.
Ginsburg is 84. Breyer is 78. There’s every possibility both of them die or step down.
Trump could have FOUR justices in his first term. And if he get re-elected the chances of getting four increase dramatically.
I’m ok with this.
Perhaps. Anything is possible, but only some things are probable. Let’s not forget the fact that most elected presidents who ran for re-election have won re-election, 75% of them, in fact, in modern times, i.e., the post-WWII period. Read that sentence very carefully before anyone rushes off to the archives in a futile attempt to disprove it. So the momentum is generally on Trump’s side.
Now, at this point, Trump does not qualify as an elected president running for re-election, because the 2020 campaign hasn’t even started yet. So in fairness, we’ll have to wait until about this point or so in 2019 before we start drawing on historical parallels as reference points.
In particular, he may not even run for re-election. He’s getting up there in age. He got bored and frustrated with the requirements of campaigning as early as about South Carolina. He already seems bored and frustrated with the B.S. of D.C. and especially the federal courts. He may be one and done of his own volition. No president since George Washington has willingly walked away from the presidency, though, and even THAT was after two terms.
Oddly enough, almost immediately after winning (which is unprecedented), Trump did in fact register with the federal election commission that he is currently running for re-election. He is an official candidate. This allows him to “campaign” and fund raise even as early as now. This is a huge advantage over the Dems as no one has declared. IMO, although controversial, I think it’s brilliant. (Full disclosure- I voted for Trump and will again. There hasn’t been a republican that has run in decades that I fully support as much as that I’m voting against the Liberal Terrorists™)
So, he could make the time to register for his own fundraising purposes on Day One, but has yet to do anything significant (no, the fiduciary stuff is not significant) for the gun owners who helped get him elected like he’d promised.
To be fair though, it’s quite clear from the comments here that Trump doesn’t need to do anything for us. His slavish supporters are perfectly satisfied that he got to appoint a single supreme court justice (as though this is something exceptional for any president to accomplish). That’s it, that’s all he had to do & they’re happy for the remainder of his term, regardless. I sure hope they’re happy the next time some Democrat gun-banner inevitably gets the office, and we start steadily losing ground again after sitting for eight/etc years with our thumbs up our asses with a shit-eating grin while blabbing that “he wasn’t Hillary.” This is the best-case trajectory we’re on now if Trump doesn’t ultimately do a heel-face turn & once more promote gun bans at Ivanka’s urging after some inevitable attack.
“No president since George Washington has willingly walked away from the presidency”
“I shall not seek, and I will not accept, the nomination of my party for another term as your President.” – Lyndon Johnson
Not to mention all the presidents who followed Washington’s lead and chose to limit themselves to two terms out of tradition before it was made law in 1951.
No, talk is not cheap, an anyone who thinks it is simply does not understand politics or how the narrative is everything when it comes to guns.
I’m starting to notice a pattern when Trump does something obviously & objectively stupid, and it’s the refrain of “you just don’t understand politics” even when the end result is a net loss of power or credibility for the man’s worthy ambitions. I understand a colossal screw up like appointing Flynn has created a nearly all-consuming distraction akin to Hillary’s email woes that will last until the 2018 mid term season at the least if we’re lucky. I understand his botched/feigned support of that ridiculous health care bill resulted in badly burned bridges with the Freedom Caucus whose Hearing Protection Act (among other initiatives he’d claimed to support previously) has now lost any chance of getting to the floor since Ryan has free reign to marginalize that group. I understand that after four years of “serious” talk, if there have been no tangible results, the voters will lose interest & Trump will stymie any primary effort, so we will be in a terrible position as far as presidential candidates should the opposition run Anyone But Hillary in 2020.
A large portion, probably an actual majority, of Trump’s vote base was highly skeptical of his promises, but respected his initiative vs. the competition. If he isn’t able to deliver much in visible ways, they won’t even be skeptical next go-around, and we’ll once again run a fat old unpopular guy against some telegenic young rising star from the Democrats.
Given the obvious risks of doing nothing, it’s really dumb to *not* do what is fully within his power to do as far as policy moves in our favor. Well, maybe not “our” favor as far as gun owners since we’re the most pathetically resigned constituency there is, but for Republican issues in general. He’s helped the energy sector pretty well so far, but mostly behind the scenes, so he needs to go a lot farther in other areas beaten down by The Man in past years.
You’re the guy that was touting the Trump conspiracy theory during the election. You know, the one you claimed Trump was going to run hard against hillary and then step back right before vote day and concede, thus giving her the white house. All part of his and hers master plan.
And we’re supposed to take you seriously, now?
“Well, Mr. President, we are waiting.…”
…and hopefully not holding your breath while doing so…
I honestly think Trump is not going to be able to finish out his first term, and by 2020 Pence will be president.
I’m curious as to why you think that.
why ask Beefeater, he is truly foll of S – – – t.
I don’t know if I’d go that far, but I do think he’ll be considerably hamstrung by his own chaotic style for the rest of his remaining term, and a second term is not at all a slam dunk.
Of course, the Democrats are probably going to run somebody god-awful as well, so he’ll get a boost from that.
I never understood how Obama got a second term, so there is hope.
“Of course, the Democrats are probably going to run somebody god-awful as well, so he’ll get a boost from that.”
I’m not so sure about that.
I think Micheal Moore had it right on election night when as the true horror (to them) of Hillary’s losing was sinking in made the comment:
“Why can’t we run someone beloved?”
I fully expect them to run someone Progressive with *sky-high* personal popularity, such as Oprah Winfrey, Micheal J Fox, Sandra Bullock, etc. To provide ballot credibility, they will nominate someone like Elizabeth Warren for vice-president.
You get the idea.
(Bill Cosby would have been a *perfect* candidate like that if it wasn’t for his recent slimy rape accusations.)
Having elected experience won’t matter one whit, thanks to Trump. They will just say, “Don’t worry, I’ll have experienced advisers to hammer out policy positions.” Like Warren or Bernie Sanders.
I doubt we could beat a ticket like that…
Everything depends on the economy, of course. If Trump can reduce taxes, reduce the cost of health insurance, and reduce illegal immigration, he’s a lock for his second term.
But the Democrats are so far gone they are never going to get Trump voters to vote for their candidate.
Maybe if they find a white Southern Dixiecrat who’s willing to bring their party back from the lunacy of the past? But nah, they’ll probably find someone just as wacky leftist as they can to ensure their base turns out. Perhaps a transgender Communist pedophile?
Compared to the “chaotic style” of Obumer and Billybob? To Bush I or Bush II.
Politics is a messt business. Driving a stake thru the chest of the lame stream progtard media is the 1st step to draining the swamp. What Trump needs to do right now is purging the Obama/Clinton appointees and hires. And not replace 75% of them – budget balance.
LOL. You’ll be waiting a LONG time. All you’re getting will be talk.
We got Gorsuch. And a .gov that ain’t pushing for awb’s and whatnot.
Admit it RF. With hillary in the white house you would have had every post with 5-6oo comments and advertisers beating down your door to throw cash at you.
I don’t think it’s the best frame of mind to be thankful things haven’t gotten worse. Decade after decade we keep getting bought with our own money and (recognition of) rights we already have, when we get back something we should have had but were deprived for 80 years it’s a major event. The fact is the US voting public are losers. Except those who enjoy it on the level of WWE wrestling, just wanting vulgar drama, I must admit they get what they want.
2b: From what I remember of the campaign trail and from what I’ve seen so far in office, our President believes that conservative values include supporting law enforcement through thick and thin, not prosecuting them.
Law enforcement is not above the law. When appropriate, they need to be prosecuted just like anybody else.
Tell that to Trump, but don’t expect him to listen. I might be wrong, but I think he’s caught a bad case of “they put their lives on the line for us every day”.
OTOH, he canned the FBI’s top agent…
“But the fact is, we’ve seen lots of talk and very little real friendly action from the Trump Administration thus far.”
I have to question your understanding of how the Legislative bodies, Legislative Process in US work in conjunction with the Executive Office of the President of the United States. While I can agree with the intent of your rants on the BATFE, why not approach a worthwhile solution like doing away with the agency altogether?
Because his point is these are things the President can do by himself through executive order. Sure he’s wrong in some specifics, but his overall point that the the Executive can do a great deal without legislation is true. Look to what a statute requires and do that.
Take the NFA as an example. The NFA is a registry and a tax. Just about all automobiles are registered and taxed. Getting my registration and paying my tax takes, at worst, tens of minutes, not months. There is no reason that the tax and registration of NFA items should take more than a day or two at the most.
If I can clear a firearm transfer in less than ten minutes 95% of the time there is no reason the ATF can’t do the same for NFA items. The electronic system they have now should be able to run the equivalent of a NICS check and once cleared issue a stamp in 30 minutes or less. Once your cleared the first time any additional NFA items should be instantaneous as soon as the taxes are paid.
I don’t disagree, I was just going with the longest time it should take to get through the process, not average processing times. On average, I think 30 minutes would be just about the right amount of time for getting to a clerk to turning to leave the store with your item/stamp.
“Once your cleared the first time any additional NFA items should be instantaneous as soon as the taxes are paid.”
That requires a registry.
Don’t get me wrong, the wait is entirely too long, and I can’t see any reason for it to be as long as it is. But a registry is simply not acceptable.
Agreed, I think that even not renewing some EOs (think 7N5 ban) would be a great start and really take absolutely no work to do.
No matter what happens, or doesn’t, Trump is a success because……
NOT HILARY
You make it easy for the two departments of the one party system, Hillary’s the stick and Trump is the carrot. It should be obvious, he’s even orange.
Zzzziiinnngggg!
Good one. Liked it.
You then are the type of person who doesn’t like ham sandwiches so you would be more happy eating a shit sandwich.
Always enjoy scholarly and learned commentary. It is what makes POTG the envy of the land.
*snicker*
Trump is a traitor. Cares more about the Russians than he does America.
LOL!
“Trump is a traitor. Cares more about the Russians than he does America.”
Trump is stymied by a congress that uniformly hates him.
Trump is interested in whatever he is interested in. Mostly making things friendly to businesses and his empire. Ok. So what?
Take a look at how ineffective Jesse Ventura was as an independent governor of Minn.
NOT Hilary !
Trump ENCOURAGED a foreign power (Russia) to interfere with our election process. That is treason.
Hillary’s ‘Foundation’ actually took *millions* in money from foreigners.
That is also illegal as hell…
“Trump ENCOURAGED a foreign power (Russia) to interfere with our election process. That is treason.”
It is my understanding that not even the DNC dares throw out that accusation, because no one has come up with any actual evidence of such actions.
OTOH, Obama actually did interfere with a sovereign country’s elections, and the left didn’t bat an eye.
Politics is a strange hobby; baseless accusations are perfectly fine, hypocrisy is seemingly encouraged, astonishment at discovering, yet again, that power corrupts is seen everywhere. Few seem to understand that politics isn’t the exercise of what’s possible, but instead a game of compromise. Obama tried to make it the former, and that’s a large part of why Hillary lost; the people were simply tired of his royal pronouncements from the throne that illegally bypassed congress, and Clinton promised more of the same. That Trump is shy of doing the same thing is, at least to me, proper.
Michael, Trump only encouraged the Russians to disseminate information they had. I’m not sure under what definition that’s treasonous. Protip: The Russians interfere however they want, anywhere they have an interest in the outcome of an election. They don’t do it as well as we do, but regardless, the big 3 are always meddling.
Least of our worries anyway. The Chinese have bought up movie theaters to make sure we show movies that normalize China. Apple has an ad running currently that features a Chinese/Taiwanese couple, in Taiwan. Tip of the iceberg, and the Chinese play the long game better than anyone. The world has given them our money in exchange for some slave labor. it’s now being used against us very effectively.
Maybe you’re the traitor spreading unsubstantiated musings trying to undermine the sovereignty of the United States.
” from January 1st through April 1st.”
Not possible. GCA (which would actually be him ordering the Treasury secretary to, not done directly) is limited to 90 days. February 2020 is a leap year so that period would be 91 days.
What he CAN and SHOULD do is declare that there will be a 90 day amnesty every 90 days (I mentioned this to my Congressman when meeting him Tuesday. He liked it and indicated he would take the idea to the President). As far as I know there is no cool down to amnesty under the GCA.
Would you please consider writing up your experience in meeting him and submit it to TTAG?
It may well inspire others to do the same….
“I will get rid of gun-free zones…on military bases….My first day, it gets signed, okay? My first day. There’s no more gun-free zones.”
STILL WAITING…
Honestly, I don’t think guns are very high on Trumps radar. I don’t think he’s anti gun. I just don’t think it’s much of a priority to him.
Sorry but
I’m pretty damn upset about the BS laws in Illinois to worry about Trump making machine guns legal. He’s also under attack from within and without to concentrate in gun rights. Every time I get a new gun I thank GOD the Hildebeast isn’t President… still hoping for the best!
As good as your ideas might sound the biggest issue i see is that they would be executive orders. Republicans were always complaining about Obama using them instead of going through congress and this would be no different.
The difference is that Obama was issuing illegal EO’s. So says the Supreme Court.
Most of the Executive Action suggestions people are making for Trump is to act within existing legislation.
Admittedly, courts have ruled against some of Trump’s EO’s. These courts are in the 9th Circuit. The most overturned Circuit. I worked for a judge who told me not to look at 9th Circuit opinions unless they were the only circuit to have ruled on the issue. The 9th Circuit is shameful. Definitely outside the mainstream.
As Trump has shown, EOs are easily overturned after a change in the White House.
And, I also believe guns aren’t really high on Trump’s list. Draining the swamp will mean a lot more than simply making EOs about guns.
Even if overturned in the next presidency, we would have years in which we could get things like machine guns on the market. We could at least have a few years in which getting an NFA item was (mostly) hassle free and quick.
I think that guns aren’t a high priority is kind of the point of the article.
“Even if overturned in the next presidency, we would have years in which we could get things like machine guns on the market. We could at least have a few years in which getting an NFA item was (mostly) hassle free and quick.”
I know it’s not popular to say so, but single-issue thinking really isn’t smart.
There is a whole gamut of “pro-gun” out there. On one end, we have all the “Pro 2A” hoplophobes who start their program to take away guns with, “I fully support the Second Amendment, but…” to the “There should be no gun laws at all” people on the other end.
Obviously, Trump isn’t at either end. As POTG, yes, we will always ask for more than we can possibly get, and we should recognize that, while still asking.
Could Trump help us more than he is (if even only by getting a constructionist on the SCOTUS)? Obviously. But we need to recognize that a makeshift EO won’t do us much good down the line, especially if it gets knocked down by the Ninth Circus right away.
You do not build a house on sand. Foundations must be laid if you want it to last.
Not what many of us want to hear, but there it is nonetheless.
“But we need to recognize that a makeshift EO won’t do us much good down the line, especially if it gets knocked down by the Ninth Circus right away.”
Makeshift EOs won’t do us much good. I’m not suggesting a makeshift EO. Some people are suggesting ridiculous EOs. I’m suggesting scraping all the barnacles (ATF regulations and practices) off of the NFA and GCA. The ATF has way more hoops than the law requires. (E.g. fingerprints, photos for NFA trustees; most of the 4473; a bunch of stuff regarding FFLs). There are other things like overturning past EAs.
I’m also suggesting that the Secretary of the Treasury declare an amnesty for registering NFA items. See http://www.thetruthaboutguns.com/2016/09/dean-weingarten/amnesty-administration-can-implement/.
The 9th Circuit has enjoined only two of Trump’s EOs. I think the argument that the 9th will just strike everything down is overblown. (And counter factual). I do think these “nationwide” injunctions are dangerous to the constitutional order.
I think we do agree for the most part. Legislative action is better than executive action. It’s more permanent. It can legitimately reach more.
Hoever, there is a great deal that the executive branch has the authority to do. It would be relatively easy to do as well. Trump is not doing any of these things. There is a reason why. The justifications for inaction are hollow. My point is either he isn’t competent or doesn’t care about 2A issues.
I don’t expect my suggestions to be taken or even listened to by anyone in power.
Perhaps we should think of an Executive Order on gun rights as clearing a path for legislation. Consider how the Emancipation Proclamation led to the 13th Amendment.
Excellent point, and actually advances the cause long-term; I get afraid of measures like some mentioned in this article that are short term. Eyes on the prize, total victory in the end.
Trump is a con man and he used 2nd Amendment supporters just like he does everyone else around him.
Wake up and realize you’re nothing but a mark for Trump and his sycophants.
“Wake up and realize you’re nothing but a mark for Trump and his sycophants.”
Which is far worse than being a mark and sycophant for whom?
“The BATFE will have 30 days to process any NFA transaction.”
Move that to 30 minutes and you have a winner.
Trump is a long term democrat, and a total rino. He got his carry permit in nyc, and cares not for the deplorables that got him elected. The gambling houses in england now have him a favorite to not make it thru the year, not the first term. If u think hes workin on anything pro 2nd amendment right now versus total chaos / crisis mode, satan bless u
“The gambling houses in england now have him a favorite to not make it thru the year, not the first term.”
H’mmm. The same folks who put their money where their mouths were and said Brexit would never happen, right?
🙂
And that Clinton would now be in the White House.
Neither Trump nor the NRA wants to win on gun issues, they just want political capital. If we don’t look beyond them, we’ll have to keep pouring money and votes in to keep what we’ve got. It’ll be years of squalid wrangling over mental health, days to allow delay for NICS checks, funding for “research”, state-level fights, compromising on other issues because the 2A is the first freedom.
If what you say is true, this is the exact reason Trump should take as many executive actions on firearms as possible. It would garner much deserved political capital and only be temporary. There is no good reason not to take executive action.
Maybe. Seems most gun people are his anyway whereas the opposition from the traditional left could always get louder, so it could be a net loss that way.
The best Machiavellian move would probably be one big executive action that the POTG would love, but most people in the middle wouldn’t care that much about either way. Though, I’m not sure the left could get louder.
Ooh, I love the idea about repeating the 1968 NFA amnesty, free registrations with no background checks.
I always envied Henry Bowman for being old enough to make 100 “silencers” during the 1968 amnesty period (which were just steel tubes with serial numbers at the time of registration).
To amnesty register a M-16, do I just need any AR-15 lower receiver with a serial number on it, and I drill out the appropriate holes for a FA fire group?
All the defenses of Trump on 2A issues are baseless. Gorsuch is the only big thing and he did that for a bunch of reasons. The 2A may have had nothing to do with it. The 2A community has only received table scraps.
The defenses that he’s only had so much time, EA’s can be temporary, and he needs Congress are wrong as defenses. All he has to do is tell his 2A group to come up with EO’s he can sign. There are things he can do through EO’s without any further action needed to be taken. Then there are EO’s where he orders his subordinates to take specific actions. Through the EO’s he can do a great deal of things that are permanent.
For example, rolling 90 day amnesties for registering machine guns (and other NFA items) has near permanent repercussions. Here is how that could work. Buy as many lowers* as you can afford. Make them into full auto/select fire lowers (with a Ghost Gunner or whatever). Register them as machine guns under the amnesty. Congratulations. You now have a number of legal machine guns.
The next president stops this. If everyone does this, more machine guns than the market can bear for decades. We’ve ensured machine guns for generations. If only some do this, machine guns are still hella expensive. You’re now rich because over 4/8 years you made tens of guns worth about $10-20k a piece.
*I’m not sure how amnesties work, so I don’t know if for legal reasons you should only do 80% lowers or finished lowers.
Don’t get me wrong, not Hillary is great, Gorsuch is great, but not losing is not great. I want to see some W’s on the board.
A big limitation on EOs is that a compliant Progressive federal judge (Is there really any other type?) can slap a stay on them in nothing flat, just like they did on Trump’s immigration EOs…
That’s a good point as to why an EO isn’t perfect, not why it shouldn’t be tried. Here are some points as to why this EO would be different.
1. It will be harder to find a plaintiff with standing in the context of an NFA related EO.
2. The logic would be more of a stretch. Though the logic on the defunding sanctuary cities order is downright terrible. The case isn’t ripe because the administration hasn’t done anything yet. No harm has actually happened. Until money is actually denied, the court could only issue an advisory opinion. The Const. requires an actual case or controversy to be before the court.
3. The law on the nationwide injunctions is not settled. This means that a district judge out in the 9th Circuit could issue a nationwide injunction against the policy, but a district judge in Texas* could issue an order compelling the government to comply with the policy, that is, issue the stamp and register the item. Everyone who is not issued a tax stamp who followed the procedures under the EO would have standing and a ripe case all across the country.
4. The case could make its way to the Supreme Court faster than anything will get done in the Senate (and probably the House). This is especially true if it is fast tracked through one circuit.
*I’m not sure what the law is on nationwide injunctions at the circuit level of any circuit. Now I’m all curious and have to go read about nationwide injunctions. Thanks Geoff, he said sullenly.
As a lawyer, you should know better than to think the Dems can’t find someone with standing to complain about an EO. Legalities don’t matter at all to liberal activist judges. It’s all about the ‘feels’ for these people. Any executive order on guns would be stayed so fast your head would spin. The reality is that Trump is in the same position Barry was in. Anything he does regarding guns with an EO will be torpedoed before the ink is dry. Remember even with a friendly court system that he appointed Obama was afraid to try this because the Red states would have sued his EO into oblivion.
“That’s a good point as to why an EO isn’t perfect, not why it shouldn’t be tried.”
If you want to throw stuff at the wall to see if it will stick, try getting into politics at the local level to see what happens.
Expecting a president to try that shows a level of misunderstanding politics that indicates some experience is needed,. Obama did that: Did you like it?
Jomo, I didn’t say they wouldn’t find someone with standing willing to sue. I said it would be harder. I can’t really imagine an argument in which states would have standing. They can just outlaw NFA items. I can imagine a liberal judge ignoring the law. That just makes it more likely that another judge will overturn their decision. It doesn’t even have to be a higher court. A district court judge in Texas has the same authority as a district judge in California. A district court judge is not bound by the decisions of any other district court judge. A liberal judge could issue a nationwide injunction on an executive order about the NFA. Someone sues because the ATF doesn’t comply with the executive order. A conservative judge issues an order directing the ATF to comply. The ATF violates one of the orders by necessity.
Big Bill, completely lawful executive orders working within the framework of statutes limiting no one’s freedom will stick. It is just a matter of how long until a liberal judge’s order is overturned.
I never said I expected a politician to keep promises or do something creative to actually help people. I said the excuses had no merit.
What Obama did is different. For example, he said he could not change immigration law on his own (he was right). Then he changed immigration law on his own. And he wasn’t simply not enforcing the law by not deporting illegal immigrants, he was granting them legal status.
“Big Bill, completely lawful executive orders working within the framework of statutes limiting no one’s freedom will stick. It is just a matter of how long until a liberal judge’s order is overturned.”
Um, no. Obviously you haven’t been paying attention to recent history.
Trump’s EOs about “immigration” from certain terrorist supporting countries, while completely legal, have been struck down, based on the entirely bogus idea that they were bans on Muslims entering the country, even though about 90% of the world’s Muslims weren’t affected.
This is what you’re missing: There are courts in this country who have no interest in the legality of anything Trump does; instead, they are guided by their hatred of the man, therefore everything and anything he does must, of necessity, be found wrong. We see this in the Ninth Circus Court of Appeals most spectacularly.
A foundation must be laid; the last eight years have terribly wounded this country, and it will take time and much more than a band-aid (EO) to even start to fix it.
The courts out of the Ninth Circuit have enjoined only two of Trumps EOs. Those injunctions are temporary. They are largely baseless. If the Supreme Court hears the case, the injunctions will be overturned. If those decisions are overturned, then the EOs have stuck.
If there is an executive action that grants individuals some right (like the right to register a machine gun or not to be issued a tax stamp for an NFA item held by a trust without fingerprints and photographs of trustees), and a government agency does not comply, then an individual can file suit to have a judge order compliance. No decision in the Ninth Circuit can limit the rights of a person who was not a party to the suit, nor do such decisions bind a judge in Texas. The only thing stopping a judge in Texas from issuing a contradictory order is judicial restraint. As the recent history that you haven’t been paying attention to has shown, there are judges in Texas who are willing to forego judicial restraint.
What you’re missing is how the judiciary works and that 95% of Trump’s EO’s haven’t even been challenged.
Question I cannot seem to find an answer for:
How does a federal appeals court decision (injunction) have force across the entire nation?
Sam, I posted the long answer, but it was marked as spam. Maybe it will show up later. The short answer is that that is how equitable powers have always worked. The long answer explained that and pointed out that it was the wrong question. Try googling “Multiple Chancellors: Reforming the National Injunction” by Samuel L. Bray. It’s posted on SSRN. I included a link, which is probably why my post was considered spam.
Got your “long answer”, and sent a follow-up question.
I don’t think you understand why Clinton wasn’t elected president (as opposed to why Trump was elected president): She promised more of the same. The “same” here is what Obama did frequently, and what you want Trump to do: Rule from the throne. We really don’t need to be whipsawed back and forth by autocratic presidents. In fact, Clinton’s defeat showed we don’t WANT to be whipsawed back and forth.
We need to exercise patience.
Politics shouldn’t be seen as a DO IT NOW thing, because, as we know from experience, such actions are usually “not a good thing®.”
I don’t think you understand why Clinton lost. She and the Democrats abandoned the working class. She even said that they were going to put coal miners out of work. It was clear to many working class people who had never voted Republican that Hillary wasn’t an option because of this sort of thing.
“I don’t think you understand why Clinton lost. She and the Democrats abandoned the working class. She even said that they were going to put coal miners out of work. It was clear to many working class people who had never voted Republican that Hillary wasn’t an option because of this sort of thing.”
Hillary only promised more of what Obama had done; that’s what I meant by “more of the same.”
You and I are saying the same thing, just using different words.
Trump sent me a survey asking me to rank priorities on about fifteen issues and asking for thoughts on another dozen or so.
Not a single one had anything to do with firearms or the Second Amendment.
Perhaps he cares about our issues, but they are obviously not in his top 25.
I have no interest in some of these (For example: 2A via executive action would be a gross violation of state’s rights and separation of powers. No dice. Full faith and credit doesn’t mean what you think it means) but I support the general idea and would love to see some actions that actually are within the executive branch’s power (the ATF ‘regulations’ is well within it)
If Texas can be forced to recognize a CA marriage license, CA should be forced to recognize a TX carry licence.
“If Texas can be forced to recognize a CA marriage license”
It’s the actual marriage that TX has to recognize. Generally speaking, licenses from one state need not be recognized by any other.
If states had to recognize all licenses issued by another state, my license to practice law would have been good in every state. I assure you that it was not, even though I had to pass a Multistate examination to get my license.
The multi-state, the test covering the law as it exists in no jurisdiction.
From the founding, and up to at least the era of Lincoln, wasn’t it common to simply declare one an attorney at law…with no credentials required?
If you think about your explanation (the marriage must be recognized, not the license), then the declaration of being an attorney, not the license, should fall under the full faith clause.
I have a question you two lawyers might answer. A licence to practice law (or any profession; Physician, Pharmacist, Engineer) is controlled by the state, and no state has to recognize such a licence issued by another state, which may have lower professional standards.
However, a CCW does not licence a person to practice a profession, but to exercise a right. (The legal need for that CCW can make that right somewhat more of a privilege.) That document endorses the holder as a qualified person to exercise that right in two senses:
— He is not a person who has become disqualified, and lost 2nd Amendment rights, e.g. not a felon, fugitive, or any other “forbidden category”.
— He has the required training in proper handling of firearms, which may vary by state from none at all to equivalent to that of an LEO.
I don’t see much of a problem in states accepting the “good character” endorsement of other states. The conflict is in the training requirement.
Since the 2nd Amendment has been incorporated, can the states be forced to accept a CCW from any state with equal or greater training requirements under the 14th Amendment “equal protection” clause?
Since voter qualification is set by the states, with limited Federal authority in spite of the four amendments asserting some minimal control, can the states in like manner to electorate qualification, set whatever standards of training they wish for a CCW?
Could states also set qualification requirements for the exercise of any other rights, e.g. (at the extreme) a college degree in the field to exercise freedom of speech on a given subject?
LongPurple, until the Supreme Court says something about the 2A outside of the home, the lower courts are going to do whatever they want. It will probably take multiple decisions before we even know the rough outlines of what the 2A will actually protect. SCOTUS could say no one needs a license to open carry, conceal carry, or both. They could say that you have to have a license from that state. They could say you have to a license from a state. They could say states have to issue licenses or that there is no 2A right outside of the home. They could set maximum standards for licensing.
Additionally, Congress could do whatever it wants in regard to allowing carry by people engaging in interstate commerce (read nearly everybody nearly all the time).
Currently, the states can and do set whatever standards they want for licensing.
“However, a CCW does not licence a person to practice a profession, but to exercise a right. (The legal need for that CCW can make that right somewhat more of a privilege.)” If you have to have a license to do something, it is a privilege, not a right. (That’s an overstatement, but you get my point).
Thank you for your response.
Your legal opinion has pretty much confirmed my understanding about how things stand concerning 2nd Amendment rights. There’s a lot more to be established by SCOTUS, and then enforced against the states who think they are free to ignore the “incorporated” (but under-interpreted) 2nd Amendment, unless of course there is an analog in their state constitution.
“If you have to have a license to do something, it is a privilege, not a right. (That’s an overstatement, but you get my point).”
Indeed I do. The CCW in a “shall issue” law is tolerable to my mind, but it should also be legal for anyone who qualifies under such a law to carry without such a “permission slip”.
States’ rights doesn’t mean states get to do whatever they want. The federal government has certain defined powers. (I do believe they have gone far beyond those defined powers). One of the defined powers is Section 5 of the 14A. Congress has passed legislation under that section. Trump can use some of that legislation to enforce the 2A against the states. Such executive action would not be a violation of either states’ rights or separation of powers.
Anything Trump does under the NFA legislation would not violate states rights or separation of powers. Doing only what Congress mandated and nothing more is not a violation of separation of powers.
1(a), (g), and 2(a) are all problematic from a legal standpoint. None of them from a states’ rights perspective.
Full faith and credit indeed does not mean what many think it means.
How about directing the DOJ to not defend ANY Federal firearm laws? You know, like Obama did with DOMA…
The best thing Trump could do right now is speed up the appointment of federal judges. There are over a hundred positions waiting to be filled!
The second best thing would be to cut the Ninth Circuit in two and put the northern batch of states from it in a new circuit — then fill that whole circuit with new Jeffersonian (which is to say, rabid supporters of ALL the Bill of Rights) judges.
And I still think he should sit down with Democrats in the Senate and ask for the names of a dozen judges they would approve of other than on the Second Amendment issue, and add two more justices to the Supremes — specifically, judges who would negate the idiocy of “corporate personhood” for anything but business matters while supporting constitutional carry for the whole nation.
“…and add two more justices to the Supremes …”
I seem to remember something about “Those who fail to learn from history…”
I like the idea of getting federal judgeships filled, though.
I’d be happy with an updated Executive Order 9066 for Liberal Terrorists™. With them out of the way, we’d get to restore our rights virtually overnight. And yes, I’m serious. Already ruled constitutional by the Supreme Court.
Bruce that maybe a great Christmas or Hanukkah list, but this stuff is only important to a minority of Americans and probably even gun owners. If you voted for Trump because you thought he would do what you listed I’m sorry to say I think you’re either real gullible or under 25. I hope you’re under 25 and just lack life experience.
While I know that calling for patience doesn’t really go over well ’round these parts, I would point out the following:
Tomorrow, Trump will have been in office 114 days. That’s 7.81% of a Presidential term.
Now, consider for a moment, if you will, that Obama (officially) played 333 rounds of golf during his eight years in office. At an average of four hours each that’s 55.4 days that the previous occupant of the Oval Office spent on the golf course during his time as President.
In other words, every minute of Trump’s Presidency to date amounts to a bit over double the time Obama spent on the links.
I’m not saying he’s done tons of great stuff for us to date but it’s useful to keep things in perspective. This is a very young administration.
“In other words, every minute of Trump’s Presidency to date amounts to a bit over double the time Obama spent on the links.”
It’s not like he’s doing nothing while golfing, it’s a perfect place to hash out policy in his foursome, the same as every other prez has done….
I’m quite well aware of how much business can and often is accomplished on golf courses. It’s actually one of the main reasons I play golf.
That doesn’t change the fact that this administration is LESS than 10% of the way through a single term. The comparison is only about time. Nothing else.
You need to understand your audience a little better. Most here don’t understand how golf can be used as a business tool, even when it’s pointed out to them.
That, and Trump’s “off time” is being constantly criticized by those who would like to characterize Trump as being away from work too much, and that type if lie works when it’s constantly repeated.
Sad, but true: The average person has little to no understanding of how true power works.
Oh I see it’s ALL Trump’s fault. You FLAME DELETED are all the same, you NEVER supported him in the first place and constantly whine about the Constitution neglecting to read the part where Congress makes the laws and the president is charged with enforcing them through Executive Branch departments. I’ll bet you think he plays golf all day, try reading his Twitter pages/website, see that he has many irons in the fire, far more than Bush, Clinton, GWB, and Obama combined, the guy is a workaholic but he CAN’T do it all himself and if he did, using Executive Orders, you’re the same whiny bitches that would be first to call him a “dictator”.
You want progress expanding the 2nd Amendment on the Federal level? Go lean on your congresscritter and senators, attend one of their Town Hall meetings, voice your concerns, demand they put up or shut up if they claim they support Gun Rights. Maybe you won’t just because you don’t want to contend with the shrieking violence prone “Resistance” provocateurs that are stacking those audiences with outside activists and professional agitators?
You want to see what’s going on at these Town Halls, the ones held by members of the GOP? Google (visit YouTube or CSPAN’s website) watch Rep. Tom MacArthur (R-NJ) see what he had to deal with. Another Republican and his aide were run off the road by a crazed female Leftist after a gathering the other day and another GOP congressman was assaulted at a meeting with constituents in his district, his attacker hauled away by the cops.
Hell yeah! What have most of you done here to help out the 2A lately besides bitch on a forum?
What did I do you ask? I volunteered for Trump, posted online, I also traveled to Virginia and spent four weeks promoting him and the 2nd Amendment in diners, hardware stores and other businesses in my “off time” and while looking at homes. I spent time talking to the neighbors around the homes I was looking at converting quite a few to our side just by telling them the horrors gun owners face in N.J.
Additionally I spent a few days in West Virginia doing the same thing, many don’t realize the hoops residents of the Garden State must jump through, even needing a N.J. FOID (Firearms Identification Card) just to purchase handgun ammo (including .22’s). I also spoke to coal miners both those still working and others who were laid off informing them that the “Job Retraining” that Diane Rodham alias “Hillary Clinton” and the Democrats promised was just a scam like the programs Syphilitic Slick Willy Clinton promised to the hundreds of oil refinery workers in my former hometown that never came to fruition. Over $10 million squandered on the office. supplies, rent and wages for just TWENTY-SEVEN (27) employees (most “No-Show” jobs) and all relatives of politically connected Democrats, a well publicized program where not a single worker got training or job placement, their tests were found by the local news in the dumpster, “UNGRADED”, employees just threw them away.
Yeah I was busy, what were YOU doing?
Well written article. I am mailing an edited version to 1600 Pennsylvania Avenue, and I encourage all everyone else to do so.
I trust President Trump. The only way to protect the second amendment is to change the law. That requires congressional action. Only congress can eliminate the NFA or the 68 gun control act. They will never totally go away. It would also help if the BATF personal numbers were cut in half. Drain the swamp.
“They will never totally go away.” Not with that attitude. It took 80 years to get from enacting the NFA to where we are today. I don’t think we can get back what we have lost in a single presidency, but we can get there eventually. Keep faith, keep pushing.
You are correct. I do need to maintain a positive attitude. I’m not worried about Trump. Its the congress that worries me, as well as the Deep State. Reducing the size of government by 50% would be great. Making half of the Deep State unemployed would be a wonderful.
I don’t really see every federal gun control law getting overturned in our lifetime, but I don’t doubt that everyone of them can be overturned, even in our lifetime.
Look at what has happened in the past two administrations. The assault weapons ban expired; Congress was not willing to renew it. Heller and McDonald. Hard pushes to get more gun control failed miserably even when there were a bunch of elementary school children shot by a psycho. The sort of thing that can really rally the “feels” crowd.
The closer we get to the goal of no gun control the harder it will be to make progress. It will also be easier for the other side to get gun control.
My outlook is that we should get as much as we can as quickly as we can. Even if it is only one major victory every 4 years or so. We pretty much managed that under Obama. (Heller was actually under Bush, and McDonald was only two years latter). If we get a couple* (or more) pro-2A Justices under Trump, and many lower court appointees, then we can make great progress in just a decade. This is a generational struggle. Even win we win, we will not have won because the fight for freedom is never over. The other side of that is that even win we lose, we can always come back.
*Gorsuch is currently untested, so I’m not counting him yet.
I would like to see more from Trump, but some of the delay is the fault of Congress, so write your Congressman and your Senators! We are likely to get three SCOTUS picks from Trump or perhaps even four. That should put major road blocks in front of any major left wing damage to our rights, once Trump has served his second term and leaves office.
Here is something that generally goes unnoticed in discussions of political action: the propensity of Americans to encounter a challenge, take an action, then decide the problem is fixed, and move on. Americans do not like problems that need complex solutions, or solutions that take much time to bear fruit. Once Trump does everything we want via EO/EA, The Repub congress will look at those as solving the problem, and losing interest in doing something permanent.
Proof? Virtually no government-controlled social service (or any other kind of government program) is ever cancelled when it proves ineffective or seems to “solve the problem”. Too difficult to go back and put an official end to the spending.
Want more? In a fit of uncommon sensibility, Congress, in 1996, finally abolished the Tea Tasting Board (which, by then had only one member), a board established before the founding.
All you Trump and NRA haters can GFY! The man hasn’t been in office for half a frickin’ year and when he does get to 2A rights you whinny bitches will still be hollering after he advances them. Perhaps you people and your pathetic lamentations would’ve been happier with Hitlary and her leftist regime in charge.
“At least Hillary didn’t get elected” That doesn’t do it for me anymore as I’ve heard that crap for 40 years;
– “At least Carter didn’t get elected”(Ronnie Regan bans machine-guns and later supports “assault weapons” bans and “hi cap” mag ban).
– “At least Dukakis didn’t get elected” – heard that one at my gun shop in 1989 (Bush 1 bans imported “assault weapons” and that law stands today),
– At least Gore didn’t get elected (Bush 2 says that he will sign a permanent AW ban but it never reaches his desk, evicerates much of the Bill of Rights with Patriot Act, does ZERO for 2nd Amendment).
We shall see with Donald but if nothing is done by 2020 I’m sure that guys like you will say “Trump needs one more term to fulfill his promises” and “send the NRA more money” (as Wayne LaPierre’s retirement money sucked out millions of dollars and they’re a bit short).
Bruce – this is an excellent article and should be posted everywhere. Trump can also alter the definition of “brokering” which the Obama administration altered to further handcuff the firearms and defense industries as well as the term “manufacturing” and the unreasonable requirements for gunsmith or gun parts manufacturer to register as exporters – both of these are some administrative changes within the state department and ATF and require no congressional action or executive orders. But, as you indicated, nothing is being done and the NRA as usual is too busy patting themselves on the back.
I wish that gun owners would quit being mesmerized by words instead of actions. President Bush 1 banned imported “assault weapons” even though he stated “no new gun laws” during his 1988 campaign, and the ban still stands today. Ronald Reagan is always touted as the conservative legend and example for the Republican party yet he was for handgun registration, supported the Bush 1 imported “assault weapons ” ban, the Brady Bill, domestic “assault weapons” ban, ban on “high capacity” magazines, and he banned machine gun manufacturing after 1986 for civilians. Even after these two Republican presidents did these things, idiot gun owners still thought they were good presidents and some feel the same about them today when at the same time they will condemn politicians who support gun control. Even Bush 2 is thought about as pro-2A even though he was in favor of making the domestic “assault weapons” ban permanent. In a few short years we will see if we got the same with Trump or if he will just do nothing to resurrect the 2A just like Bush 2.
So, the Fourth Amendment only applies to electronic devices at the border? They can search my suitcase without a warrant but not my cell phone? That makes no sense.
Trump has one job to do. Besides the last SCOTUS pick, he has one more to get on the court. There are unfilled Federal Judgeships which I do not understand why he is not busy filling. AS I stated before the election and will continue to say, Trump will not do shit to move gun rights forward. He is not your guy. The Republicans with all their votes, will do nothing. Nothing will be done. We lucked out on the M1 Garand’s from the Philippines coming home and we are lucky if we get the 1911s as well but that is most we can expect. Trump will not help us. He is happy with the NYC gun ban as long as he can get his gun and he never raised a voice or lifted a finger to help with the NY gun bans — he is not a gun guy he only cares about himself.
As far as jobs, the economy or anything else — flip a coin and good luck — this guy is too busy watching TV and looking at himself in the mirror.
Thank you.
Where I remain confused is the travel ban injunctions are considered nationwide, but federal circuit court opinions apply only to the geographical jurisdiction of the appellate court. How do injunctions become more powerful? Peruta (9th circus) has no effect on 10th circuit, but the 9th circus travel ban injunction stops the travel ban across the entire nation.
If you read the paper in the link, then it might help you understand how it got that way. The paper does suggest that national injunctions may be unconstitutional.
Are national injunctions more powerful than a circuit court decision? Yes and no. A national injunction strikes down a single law everywhere. A circuit court decision controls how laws are interpreted and therefore, which laws can be struck down in that circuit.
How do injunctions become more powerful than circuit court decisions? Read the paper. Two things from the paper.
“First, the federal courts once thought of injunctions against enforcement not as challenges to the validity of a statute (something offensive) as much as as anti-suit injunctions (something defensive).200 A plaintiff seeking an injunction against public officials would be trying to forestall an enforcement action in which the parties would be reversed (i.e., the plaintiff seeking an injunction would otherwise have been the defendant in the hypothetical future enforcement action). A court would decide the validity of a law being applied, but only when there was, and to the extent that there was, a threatened enforcement action.201 To the extent federal courts thought of injunctions against the enforcement of statutes in those terms,202 it is easy to see why they would not give national injunctions. The suit anticipates an enforcement action against these plaintiffs; the injunction should protect these plaintiffs from that enforcement action.”
“Second, there has been a change for some judges in their self-conception of what they are doing vis-à-vis an unconstitutional statute. The traditional conception is that judges do not so much strike down an unconstitutional law as refuse to apply it.206 A judge has a duty to follow the law.207 Where there is a conflict among legal authorities, that duty compels the judge to follow the higher law. When a statute is “repugnant” to the Constitution, that is, inconsistent with the Constitution, what a judge does is simply not apply it. This view is represented by Marbury v. Madison.208
A different view is common today, and it can be found in the metaphorical language of courts and commentators. We speak of a statute, regulation, or order being “struck down,” words that are physical and violent.209 Another description, less violent but still suggestive of physical dislocation, is found in the Administrative Procedure Act, which says that federal courts are to “set aside” unlawful agency action.210 Such language has accompanied a shift in the idea of what courts do with an unconstitutional statute: instead of courts remedying or preventing a specific wrong to a person, and only incidentally determining the constitutionality of a law, now many see courts as determining the constitutionality of a law and only incidentally remedying or preventing a specific wrong to a person.211
Understand. The notion that a person can be enjoined from taking, or refusing to take, an action nationwide (either a court’s jurisdiction is limited to that specific jurisdiction, or it is not. Splitting hairs between injunctions and decisions seems gratuitous, and effectively a usurpation. The idea that an appellate court can issue a nationwide injunction regarding a privilege (immigration), but can only issue a decision on an enumerated constitutional right that is effective only in the appellate/circuit court jurisdiction defies common sense, and bolsters the contempt the populace has for legislators (who are uniformly lawyers).
In the case of immigration, the 9th Circus used a extra-legal theory (campaign rhetoric) in justifying the temporary “travel ban” (the legal questions were admittedly ignored or distorted). This extra-legal declaration by the 9th sets precedent for every court to use the same reasoning in deciding any injunction, any legal dispute. If nefarious motives exist for executing legal functions, then we have moved from a nation of laws, to a nation of opinion, which is no different from the whims of despotism. M v. M should have been the end of it. Congress should have taken such matters completely out of the jurisdiction of all courts. In the case of nation-wide injunctions issued by a single court, Congress is cowardly for not dissolving any such idea of judicial activism. If case decisions are restricted to the appeals court jurisdiction, no court edict should have effect beyond the geographical boundaries of the jurisdiction of such court. But we do not have legislators capable of making such principled stands, on anything.
Appellate courts can’t issue injunctions. They cannot determine facts. They interpret the law. They make a decision either upholding a court decision or overturning it. If overturned, the appellate court remands the case to the lower court to make a decision in line with the appellate court’s holding as to what the law is. Reading an appellate decision overturning a lower court decision often does not inform the reader of the final result of the case. The party that loses the appeal may still win the case.
A court’s equity jurisdiction has always extended beyond the court’s territorial jurisdiction.
There are three types of jurisdiction for determining if a court can hear a case. Territorial, personal, and subject matter.
Territorial jurisdiction means the court can only bring matters and parties before it that have a substantial connection to the area in which the court sits. An example would be a lawsuit centered on a flight from Georgia to Florida. A court (state or federal) in either Florida or Georgia would have territorial jurisdiction. The court could go after the property of the party held liable in Alabama.
Personal jurisdiction is largely a function of territorial jurisdiction (there are other things required like notice). If a person is in a court’s territorial jurisdiction or has sufficient connections to that jurisdiction, then the court has (or can get) personal jurisdiction.
Territorial and personal jurisdiction can be waived.
“Subject matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority to hear bankruptcy cases.” – Wikipedia. If a court doesn’t have subject matter jurisdiction, it cannot make a decision. Any decision it does make is void.
If a court has jurisdiction, then it doesn’t matter where the parties go. They can’t escape the courts order by acting outside of the state. This is even true of state courts. State court decisions being enforceable in another state what the full faith and credit clause is all about.
Precedent is the body of court decisions a lower court looks to in determining the law. Lower courts are bound by the decisions of a superior court. Comparing precedent and trial court orders is like comparing apples and oranges. They’re both fruit. They both make juice. I haven’t tried both with peanut butter, but I’m going to go ahead and only one is good with it.
Always good information.
Is a circuit court not an appeals court? Thus bound to interpretation only, not fact finding?
That is correct. Circuit court is pretty close to a synonym for appellate court.
There are some situations where appellate courts make decisions about facts. Like that the facts in the record were insufficient to come to the conclusion the lower court came to.
Wow, my reply below ended up as a response to someone else:
“Thank you.
Where I remain confused is the travel ban injunctions are considered nationwide, but federal circuit court opinions apply only to the geographical jurisdiction of the appellate court. Are injunctions become more powerful than case decisions? Peruta (9th circus) has no effect on 10th circuit, but the 9th circus travel ban injunction stops the travel ban across the entire nation.”