How well might the president's new orders & ideas work in reducing unlawful gun violence?
Start with the 23 executive orders President Obama announced yesterday, many of which would enforce existing laws. Add a primer on presidential executive orders, that sketches out the likely limits of presidential authority in this field:
[P]ursuant to his constitutional mandate to “take Care that the Laws be faithfully executed,” the president clearly has the authority to direct the Department of Justice to prioritize more comprehensive enforcement of the gun laws already on the books or to enhance tracking of the paperwork related to the sale and registration of guns. Presidents George H. W. Bush and Bill Clinton actually implemented gun-control measures by executive orders pursuant to this authority, banning the importation of certain assault weapons under existing gun-control laws.
The key question is how much President Obama might try to accomplish by executive action in the gray areas. It is possible that he can make background checks for gun buyers mandated by the Brady Bill more effective and efficient and also facilitate better sharing of mental-health information (if he is willing to take on the ACLU in doing so) by executive action. However, if he goes further and attempts to ban assault weapons or high-capacity ammunition magazines unilaterally, he will be on shaky legal ground. Although the Heller Court stated that the right to possess a firearm does not include the right to possess any kind of weapon for any purpose, it is unclear whether a blanket ban on assault weapons and high-capacity magazines (even if duly passed by Congress) would survive a Second Amendment challenge (it may depend, in part, on how such weapons were defined).
Because Congress has acted to ban assault weapons in 1994, and allowed the ban to expire in 2004, a presidential ban on assault weapons would not likely survive judicial review. Where Congress has spoken, courts generally defer to legislative exercise of authority.
How many of these pass constitutional muster federal courts will decide. For now it clearly shows a president who believes that lack of sufficiently strict gun control is the overriding policy failure behind the spate of mass school shootings that culminated in the horror of Newtown. In some areas the president likely has a point, though his measures do not appear targeted at mass shootings, but rather are broad & general in focus.
The LA Times reports that federal background checks are riddled with holes:
As it now stands, the database is missing millions of names of people who can't legally own guns. Federal agencies are supposed to turn over any relevant records — for instance, names of people who failed drug tests or those judged mentally ill — but most, including the Defense Department, haven't provided anything. Obama's first order sets tight deadlines for agencies to identify records and begin to turn them over.
Many more records are under the control of states, but progress in moving them into the [NICS - National Instant Criminal Background Check System] has been slow. Studies have shown that millions of criminal and drug cases are still missing, in large part because of difficulties in making state court data mesh with the federal system. Mental health records have been a particularly thorny obstacle: Because of privacy concerns, confusion and the difficulties in finding and converting paper records, most states have made "little or no progress" in turning those records over to NICS, according to a study last year by the Government Accountability Office.
It should be noted that a background check would not have prevented Newtown, as the gun used was stolen from the shooter's mother, who legally owned it.
The president did not always feel the need to target gun violence. In 1999 state senator Barack Obama voted "present" on a bill that mandated prosecution as an adult as to any unlawful discharge of a gun at or near a school. The bill passed 52-1, with 5 voting "present."
Key steps reserved for action in Congress: (a) renewal of the assault weapons ban; (b) prohibition of high-capacity magazine clips. Neither is likely to pass Congress.
For reasons I articulated in my Jan. 7 "Guns, Media & Newtown" LFTC post, I believe the president to be misdirecting his focus. But having won re-election, he is free to push his preferences as far as he can--and do so he surely will. And the president is free to do so despite a new Gallup poll showing that only 4 percent of Americans place gun control first in priority, way below the numbers according economic & budget issues primacy.
Notably, the president's action proposals do not seek a quick curb on violent films & video games viewed by impressionable young males; one new initiative asks for $10 million for the Center for Disease Control (CDC) to study the effect of violence in media on audiences.
As William LaJeunesse reports for Fox News, 40 percent of gun purchases by criminals are made on the street; another 40 percent come from friends & family; a mere 4 percent come from pawnshops; and all of one percent come from gun shows. (This leaves 15 percent of sales unidentified.) This complicates tracing gun purchases.
NRA President David Keene predicts that the president can get his way if he expends sufficient (in DK's view, considerable) political capital. But Keene & Sen. John MCain both predict that an assault weapon ban will not pass Congress; Keene also predicts that a high-capacity magazine ban will not pass muster on the Hill.
Jed Babbin explains why the gun debate is "unserious" in a crisp TAS piece. He accepts universal background checks but says existing ones are too slow, and that a 5-minute procedure can suffice. JB regards arming janitors & teachers as "idiotic." JB supports some ideas:
As I wrote a few weeks ago, there are serious solutions that would likely prevent mass murders such as the Newtown massacre. First and foremost is to get the dangerous mentally ill off the streets. For the past forty years or so we’ve been so busy protecting the civil rights of the insane that we now have state systems that make it almost impossible to involuntarily commit the dangerously insane.
These people, as forensic psychiatrists agree, can be identified before they act because they fit a fairly clear profile. It’s time for the states to take decisive action by changing their laws and spending the money that’s required to take these people out of circulation and house (and treat) them in adequately secure facilities.
And there’s more the states have to do, such as implementing the plan authored by former SEAL Dale McClellan that I described in December. It will cost a lot of money, but it will be effective and it won’t infringe on the Second Amendment. Those are serious proposals that should be at the center of the case gun control opponents make.
Gun control opponents aren’t opposed to background checks, because we believe that the dangerous mentally ill, criminals, and illegal aliens shouldn’t be able to buy guns. If the gun show exemption is to be changed it should be replaced by a quick and cheap system that sellers and buyers can use at gun shows. But that’s not what the liberals want.
But not all. JB co-authored an earlier TAS gun article, in which he wrote:
There are two ways to prevent or at least reduce the number of deaths in mass murders by gun. In the 1960s and early 1970s, our society made the decision to essentially prohibit the mentally ill from being committed involuntarily. All of the killers — from Columbine to Virginia Tech to Newtown — were insane. We need to change the way we deal with the mentally ill who are dangerous to society....
The second way to deal with these murder sprees is to look at where they occur and craft a strategic response. Killers attack children in school and people in shopping malls because they are defenseless.
Schools are a tougher problem than shopping malls. They shouldn’t be armed camps, and though many have “school resource officers” who function like the shopping mall rent-a-cops, our children are essentially undefended. Teachers are unarmed — and should remain so — but more importantly they are also untrained. They’re not aware of what they should do, and when the school is “in lockdown”: they only know to huddle in a corner with the kids. Which only makes a denser target for what the police call an “active shooter.”
If you post an armed guard in every school, they’ll be the first targets of the killers. Why buy or steal a gun when you may be able to overcome the inadequately trained guard and take his weapon? States don’t want to spend enough money to post a SWAT-trained cop at every school or hire well-trained guards. Even if they were we’d be back to the armed camp idea. So what’s the answer?
The practical solution is to provide school teachers and personnel with the training and the assets necessary to protecting the children — defending them — for the minutes it takes for police to respond to a call about a shooting in progress.
So JB & his special ops co-author suggest three remedies: (1) magnetic door locks; (2) ballistic Kevlar shielding; (3) arming staff with tasers (quoting his spec ops co-author):
“So if you’re trained to aim and fire the TASER, and if you’re confronted with a shooter like the Newtown principal and some teachers were, if you can get to the TASER you may be able to stop the incident right there.”
So is that it? “That’s as far as we can go now. If we had trained teachers, ballistic doors with mag locks, ballistic blankets to protect the kids and maybe even some TASERs, the teachers could make schools a much tougher target and a lot of kids’ lives might be saved.”
Newtown school principal Dawn Hochsprung and school psychologist Mary Sherlach confronted shooter Adam Lanza, and were killed trying to stop him. Had they a TASER, perhaps the killing would have ended, and without their lives being taken. Twenty-seven year old teacher Victoria Soto gave her life standing between Lanza and her students. What if she had had a TASER and the training to use it?
Michael Goodwin praises NY Gov. Andrew Cuomo for garnering GOP support for his gun-control reform package by including measures to tighten mental health reporting & involuntary commitment laws, and protecting the privacy of gun owners from involuntary public disclosure. Gov. Cuomo's magazine size limit of seven bullets may impede homeowners who face multiple intruders. Moreover, Bob McManus at the NY Post notes that in 2012 rifles killed 5 New Yorkers while fists killed 28.
Appearing on Fox & Friends, NYPD Commr. Ray Kelly said that some 90 percent of guns confiscated by NYPD come from out of state; NYC's main gun problem is concealable handguns held by criminals. He added that the magazine limit could reduce the toll in mass shootings, perhaps by one or two lives.
Bottom Line. The president has held his high-profile pony show. Some good may be done by upgrading coverage & quality of background checks. But getting Congress to pass an assault weapon ban or limit magazine sizes likely prove a daunting task, in no small measure due to dubious prospects that such measures would work effectively in real-world situations. Count on Silicon Valley video games & Hollywood trash-films to get a continued pass.
Letter from the Capitol, LFTC, Conservative Politics
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