By Richard Hayes
Many of our freedoms seem to have disappeared right before our eyes; no explanation needed, no permission needed, and no votes cast. How could this possibly happen without more involvement among the people of our country? It’s all linked to two words: executive orders.
In this two-part article, I’ll examine the subject and history of executive orders, how they end up affecting everyday life and infringing on our right to keep and bear arms.
We begin with federal executive orders. In the second part, I’ll cover state executive orders issued by governors. These state-based executive orders have certainly been in the news throughout the pandemic as states have tried to “slow the spread” of the COVID-19 virus. But for now, let’s start at the top of the executive branch.
The Authority of the President
The President of the United States 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 is 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 doesn’t need Congressional approval to issue an executive order, Congress can revoke an executive order either by enacting new laws (subject to the President’s veto power) or by 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 the President that greatly affected people; some severely limited their rights under the Constitution, and seem outright antithetical to our American ideals. 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, 1953. This order allowed the Secretary of Commerce to take possession of certain American steel mills and ordered any and 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 the use of hunting with a “lantern, torch, bonfire, or other artificial light” a misdemeanor offense. Further, Wilson signed many other executive orders covering hiring, anti-corruption efforts, telegraph and wireless services, postal crimes, and 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 war. While the initial order only allowed for warrantless arrest between New York City and Washington, D.C., President Lincoln also suspended habeas corpus and imposed martial law in Kentucky on July 5, 1864.
- President Franklin Delano Roosevelt (“FDR”): Through Executive Order 9066, in 1942 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, were denied the right of habeas corpus, and placed in detention facilities on account of having Japanese ancestry.
Gold, Guns and Presidential Orders
Another noteworthy FDR action occurred on April 3, 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 go the same way?
To date, a mandatory buyback has never been attempted. One failed 2020 presidential candidate, memorably proclaimed during a debate in Houston, that “Hell yes, we are going to take your AR-15, your AK-47.” Possibly, this candidate was thinking of issuing an executive order to do just that.
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 to ban bump stocks by changing their regulations.
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 who the Commander in Chief is and what heir desired policies may be. This is why it’s extremely important to research all candidates for elected office (especially presidential candidates) to understand his or her position on gun control and policy.
Your votes can and will affect your gun rights.
Richard Hayes is an Independent Program Attorney for U.S. LawShield.