Guns

Obama Oversteps His Authority With Gun Orders

The president is without authority to negate the congressional will, and any attempt to do so will be invalidated by the courts.

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White House/Instagram

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." —Second Amendment to the U.S. Constitution

In 2008, the Supreme Court laid to rest the once-simmering dispute over the meaning of the Second Amendment. In an opinion written by Justice Antonin Scalia, the court articulated the modern existence of the ancient right to keep and bear arms as a pre-political right.

A pre-political right is one that pre-exists the political order that was created to protect it. Thus, the court held, the origins of this right are the ancient and persistent traditions of free peoples and their natural inclinations to self-defense.

The court also characterized the right as fundamental. That puts it in the highest category of rights protected by the Bill of Rights. Though the origins of this right are from an era well before guns existed, the textual language in the amendment—"Arms"—makes clear, the court ruled, the intention of the Framers that its continuing purpose should be to recognize the right of people to keep and use the same level of technologically available arms that might be used against them.

That, in a nutshell, is the history, theory, and purpose of the amendment as the modern Supreme Court has found them to be. But as we have seen, the constitutional guarantees that were written to keep the government from interfering with our rights are only as viable as is the fidelity to the Constitution of those in whose hands we have reposed it for safekeeping. In our system, principal among those are the hands of the president; and sadly, today we have a president seriously lacking in this fidelity. And that lack is salient when it comes to the Second Amendment.

Earlier this week, President Barack Obama announced that he will sign executive orders that expand the size and scope of federal monitoring of the acquisition and use of guns—traditionally a matter left to the states—and he will interpret the laws in novel ways, establish rules and impose obligations that Congress rejected, and prosecute those who defy his new system.

The president has very little room to issue executive orders on guns because the congressional legislation in this area is so extensive, detailed, and clear. In addition to ordering your doctor to report to the Department of Homeland Security (DHS) any mention you may make to the doctor of guns in your home, the president has decreed on his own and against the articulated will of Congress the obligation of all people who transfer any gun to any other person to obtain a federal gun dealer license. This is among the most cumbersome and burdensome licenses to obtain.

He has also decreed that any licensee who fails to perform a background check on the person to whom the licensee has transferred a gun shall be guilty of a felony. Give a BB gun to your nephew on his 16th birthday without a federal license and you can go to prison.

Can the president do that? In a word: No.

Under our system of government, only Congress can write federal laws and establish crimes. The president is on particularly thin constitutional ice here because his allies in Congress have proposed this very procedure as an amendment to existing law, and Congress has expressly rejected those proposals.

The president is without authority to negate the congressional will, and any attempt to do so will be invalidated by the courts. As well, by defining what an occasional seller is, beyond the congressional definition or the plain meaning of the words, the president is essentially interpreting the law, a job reserved for the courts.

By requiring physicians to report conversations with their patients about guns to the DHS, the president will be encouraging them to invade the physician-patient privilege; and I suspect that most doctors will ignore him.

Under the Constitution, fundamental liberties (speech, a free press, worship, self-defense, travel, and privacy, to name a few) are accorded the highest protection from governmental intrusion. One can only lose a fundamental right by intentionally giving it up or via due process (a jury trial resulting in a conviction for criminal behavior). The president—whose support for the right to keep and bear arms is limited to the military, the police and his own heavily armed body guards—is happy to begin a slippery slope down into the dark hole of totalitarianism, whereby he or a future president can negate liberties if he hates or fears the exercising of them.

We still have a Constitution in America. Under the Constitution, Congress writes the laws, the president enforces them, and the courts interpret them. The president can no more write his own laws or impose his own interpretations upon pre-existing laws than Congress or the courts can command the military.

As troubling as this turn of events is, it is not surprising. The president is a progressive, and the ideology of progressivism is anathema to self-help or individualism. He really believes that the government can care for us better than we can care for ourselves.

Yet he ignores recent history. Any attempt to make it more difficult for people to keep and bear arms not only violates the fundamental liberty of those people but also jeopardizes the safety of us all. Add to this the progressive tendency to use government to establish no-gun zones and you have the recipe for disaster we have recently witnessed. All of the recent mass killings in America—from Columbine to San Bernardino—have occurred in no-gun zones, where crazies and terror-minded murderers can shoot with abandon.

That is, until someone arrives with a gun and shoots back. Then the killer flees or is injured or dies— and the killing stops.

COPYRIGHT 2016 ANDREW P. NAPOLITANO | DISTRIBUTED BY CREATORS.COM

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  1. But he *cried*! Didn’t you see how much he cares for us? Why must you denigrate the light-bringer?

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      1. Whore your wares somewhere else.

  2. Impeach this charlatan

    1. That would require Congress to peak into their shorts and discover that they actually have a pair.

      1. peak into their shorts

        I suspect many democrats in congress have “peaked” in their shorts over this.

    2. No one dares offend the black man, no matter the depravity of his actions.
      Much the same reason many voted him him, color.
      Far we have fallen, grasshopper.

  3. And when this guy travels there’s another plane just for security and well armed men.

    1. Ironically (not) The more a Progressive hates the Constitution, the more heavily armed their security is.
      The more reason we must resist.
      Remember your history, the tyranny foisted upon an newly unarmed society.
      There will be no need of elections this year, Comrade, your leader has been chosen for you by your betters.

  4. Ah yes, because the judge is always SO spot on about his predictions of court decisions. Let’s take one, Obamacare.

    “The Congress can’t simply wake up one day and decide that it wants to regulate this. I predict that the Supreme Court will invalidate major portions of what the president just signed into law”

    http://belowthebeltway.com/201…..ntil-2018/

    And, he predicted the Court wouldn’t even hear the case til 2018. Oops!

    And he predicted such an outcome one additional time. Keep those predictions coming!

    1. Ah yes, because the judge is always SO spot on about his predictions of court decisions. Let’s take one, Obamacare.

      How was the judge to know what a dishonorable son-of-a-bitch we have for a chief justice?

      1. Roberts was very clear during his confirmation hearings that the SCOTUS should not overturn laws. He went on and on about the Loughner decision and how the court was wrong to invalidate a New York law limiting work hours in bakeries. Loughner was based on the right of individuals to contract with each other and Roberts found this right to be unprotected by the Constitution.

        Roberts was chosen by conservatives for the purpose of upholding the “Defense of Marriage Act” and other conservative laws. The conservatives got the judge that they wanted only he was more consistent than they had hoped for. He upheld a law that they despised.

        This should be an object lesson about two edged swords but I’m sure that no one in congress will learn anything.

    2. Jackand Ace|1.7.16 @ 9:02AM|#
      “Ah yes, because the judge is always SO spot on about his predictions of court decisions.”

      Hey, shitbag, maybe you could stick to the subject:
      Judge Napolitano: “Supreme Court will invalidate Chicago gun law”
      https://www.gunandgame.com

      Well, well, look at that!
      “Supreme Court Extends Second Amendment to the States”
      […]
      “In a 5-4 decision, the United States Supreme Court has effectively struck down Chicago’s gun law”
      http://jonathanturley.org/2010…..o-gun-law/

      Fuck off, slaver.

      1. He’s a “slaver” for pointing out the man has a history of stridently making incorrect predictions about what the courts will do?

        1. Careless|1.7.16 @ 1:08PM|#
          “He’s a “slaver” for pointing out the man has a history of stridently making incorrect predictions about what the courts will do?”

          He’s a slaver in that he supports every statist takeover of liberty that’s mentioned here.

    3. The problem isn’t Judge Napolitano; the problem is that NO ONE LISTENED TO WHAT JOHN ROBERTS WAS SAYING DURING HIS CONFIRMATION HEARING.

      He was pretty clear about deferring to Congress (the Borkian model of jurisprudence). Which made Randy Barnett raise the red alert.

      Now, if Randy Barnett had been on SCOTUS, instead of John Roberts, things, my dear, would have been a whole lot different.

      1. “NO ONE LISTENED TO WHAT JOHN ROBERTS WAS SAYING DURING HIS CONFIRMATION HEARING.”

        You got that right.

        Barnett is one the best legal minds around. Unfortunately, he will never be chosen for the Supreme Court because he would limit the power of government, something which the present crop of politicians would never permit.

  5. The president is without authority to negate the congressional will, and any attempt to do so will be invalidated by the courts.

    “How many divisions does Congress and the Supreme Court command?” – King Obama the First

    1. I thought it was Andrew Jackson who first asked that question?

      1. I’m pretty sure that was FDR.

    2. Congress has the authority to defund the military. Unfortunately congress has also granted the executive the authority to print and borrow money at will.

  6. Someone at Associated Press has an honesty attack:

    “Obama measures wouldn’t have kept guns from mass shooters”
    […]
    “The gun control measures a tearful President Obama announced Tuesday would not have prevented the slaughters of 20 first-graders at Sandy Hook Elementary School in Newtown, Conn., or 14 county workers at a holiday party in San Bernardino.”
    http://www.sfgate.com/nation/a…..741368.php

    So that lying sack of shit stood there weeping crocodile tears and waving bloody shirts for zero effect.

    1. It played to his target audience. You’ve gotta understand, he’s just building a legacy, he wants to be in the history books as great and unprecedented. Substance is of little concern.

  7. If Congress not passing laws is some kind of evil “obstructionism”, and if the president can be trusted to change existing laws and invent new ones, why have a legislature at all? Why not just make the president into a dictator who does anything he wants?

    1. When will we be having a fire at the Riechstag Capitol building?

      1. For it is 1935 all over again.
        My grandparents were young (Jewish) adults then, we grandchildren were hammered with the lessons of that time.

  8. The president is without authority to negate the congressional will, and any attempt to do so will be invalidated by the courts.

    Yeah, but it’s still going to suck ass for the guy who has to be the test case and go through the courts to get it negated. Assuming he survives his initial encounter with the ATF, that is.

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    1. Piss off, Jack.

  10. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” ?Second Amendment to the U.S. Constitution

    What part of shall not be infringed do they not get? Most politicians feel only they and their families are worthy of protection through armed security, while the people shouldn’t have those rights because they are not important enough. They even have liberals that believe only their masters and the arm of the state are important enough to warrant self defense.

    Underground bunkers were built, not for the people, but for them and their families, should the blowback from their foreign or domestic policies result in disaster.

    They are not stupid. They know a disarmed people are easier to control and enslave.

  11. “and any attempt to do so will be invalidated by the courts.”…eventually, and at great cost.

    1. Said costs paid by the long suffering public, or body politic.

  12. Then again, even if the courts do succeed in striking down Obama’s crap, Obama will remain first in the hearts of low info voters who don’t care about the courts, and Barack will have gotten what he really wanted.

  13. In 2008, the Supreme Court laid to rest the once-simmering dispute over the meaning of the Second Amendment. In an opinion written by Justice Antonin Scalia, the court articulated the modern existence of the ancient right to keep and bear arms as a pre-political right.

    Yes, they did. Unfortunately they didn’t do it in plain English, a thing that some have a strange aversion to. As to Obama,has he done anything other than that, “that” being going beyond his legal and proper authority?

  14. Excellent throughout, except for one niggly detail:

    All of the recent mass killings in America?from Columbine to San Bernardino?have occurred in no-gun zones, where crazies and terror-minded murderers can shoot with abandon.

    the shooting spree in Colorado, deceitfully referred to as the Planned Parenthood shooting, was on the openn streets of that city, not a gun free zone. The shooting, about six years ago, of four policemen on break in a coffee shop in Lakewood Washington was not a gun free zone. And the parking lot shooting near Tucson Arizona where a judge was assassinated, a little girl killed, along with others, and Gabby Giffords was shot/wounded, was also not a gun free zone. EVERY OTHER mass shooting since 1950 did take place in gun free zones. Your point stands, as the “Defenseless Victim Concentration Zones do seem to be the crime scenes of choice.

    Yes, the kinyun is WAY out of control.

    1. Consider this: the lack of prosecutions serves the same purpose of releasing tens of thousands of felons from prison. They are 0bamas’ voter base.

  15. Progressives always point to the number of Executive Orders (EO) previous administrations have issued, defending 0bama’s EO’s. Difference is, 0bama’s EO have primarily been to circumvent Congress and/or the courts. Cite an EO from a previous administration that was specifically issued to thwart the will of Congress or the courts? Seems most if not all 0bama’s EO’s were intended as a Usurpation of the balance of power. Therein lays all the difference in the world.

  16. Dear Judge:
    You say Obama cannot overstep his constitutional authority but he does, anyway. So he can. Isn’t this rather confusing?

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  18. “We still have a Constitution in America”

    Sorry judge, but all we have is a piece of paper with some words on it that seems to mean whatever politicians want it to mean on any given day. Change one Supreme Court judge and gun ownership is gone forever.

    Look at the clown show known as “the 2016 presidential campaign” and tell me which of the clowns would interpret the Constitution in a way that would actually limit the government to its original powers? Hillary? Trump? Sanders?!!!

    What sort of judicial “yes man” would these Mussolini wannabes put on the court?

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  20. Judge Napolitano, if I am not mistaken this is solid legal ground for impeachment proceedings. What are the odds that any of our elected representatives will at least start this process?

  21. and any attempt to do so will be invalidated by the courts.

    Don’t bet on it. In particular if Hillary gets to nominate the next slate of justices.

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    1. As an aside; and as a completely irrelevant off topic question. WTF IS UP WITH THESE SPAMMING CUNTS ?…I am just saying. You cannot post 3 politely phrased counter arguments on mother jones or TNR or the random MSM outlet without being banned, knocked off AND having your comments thrown into the not so metaphorical memory hole. We don’t censor or delete people here. Even the most obnoxious trolltards. Because they may make a point, even accidentally. More importantly they give you exposure to ideas and arguments outside of the echo chamber. I am mature enough to handle the horrific microaggressions new ideas may impose upon my fragile psyche. What I am not getting is the 1111ty% chance that the fucking thread will all ways be cluttered with this kind of bullshit. Sometimes 14X. Can anyone show me one thread in the last 2 years that doesn’t have at least one steaming turd of this sort of electron hogging gibberish?… Is this some sort of a long running practical joke that only state fellating cunts get?… Can Reason afford to hire the sort of IT geniuses capable of taking this sort of trash off of the screen?…(#everyelectronisprecious.com)

  23. You forgot to add one sentence to your concluding thought:

    ORIGINAL:

    “That is, until someone arrives with a gun and shoots back. Then the killer flees or is injured or dies? and the killing stops.”

    EDITED:

    “That is, until someone arrives with a gun and shoots back. Then the killer flees or is injured or dies? and the killing stops. And then the mainstream media hunkers down to bury this part of the story, or ignore it altogether since it doesn’t adhere to the pre-approved talking points and story line.”

  24. I just realized this was written in 2002. I wonder what the gun crime rate is now. Any government that tells you that you have no right to self defense is not looking after your best interest. Self defense is the most basic right anyone has. No government or police can protect you. I can’t believe you all allow this to continue. I keep a gun at home for self defense and have a license to carry it concealed any where I go. And I do. If I am attacked then at least I have a chance to stay alive. By the time the police arrive they can either arrange for my body to be picked up or take a statement from me. I choose the later. Britons let a right be taken from them and now it will be much harder to get it back. But you should try.
    ???? ????? ??????
    ???? ????? ??????

  25. I just realized this was written in 2002. I wonder what the gun crime rate is now. Any government that tells you that you have no right to self defense is not looking after your best interest. Self defense is the most basic right anyone has. No government or police can protect you. I can’t believe you all allow this to continue. I keep a gun at home for self defense and have a license to carry it concealed any where I go. And I do. If I am attacked then at least I have a chance to stay alive. By the time the police arrive they can either arrange for my body to be picked up or take a statement from me. I choose the later. Britons let a right be taken from them and now it will be much harder to get it back. But you should try.
    ???? ????? ??????
    ???? ????? ??????

  26. I just realized this was written in 2002. I wonder what the gun crime rate is now. Any government that tells you that you have no right to self defense is not looking after your best interest. Self defense is the most basic right anyone has. No government or police can protect you. I can’t believe you all allow this to continue. I keep a gun at home for self defense and have a license to carry it concealed any where I go. And I do. If I am attacked then at least I have a chance to stay alive. By the time the police arrive they can either arrange for my body to be picked up or take a statement from me. I choose the later. Britons let a right be taken from them and now it will be much harder to get it back. But you should try.
    ???? ????? ??????
    ???? ????? ??????

  27. I just realized this was written in 2002. I wonder what the gun crime rate is now. Any government that tells you that you have no right to self defense is not looking after your best interest. Self defense is the most basic right anyone has. No government or police can protect you. I can’t believe you all allow this to continue. I keep a gun at home for self defense and have a license to carry it concealed any where I go. And I do. If I am attacked then at least I have a chance to stay alive. By the time the police arrive they can either arrange for my body to be picked up or take a statement from me. I choose the later. Britons let a right be taken from them and now it will be much harder to get it back. But you should try.
    ???? ????? ??????
    ???? ????? ??????

  28. I just realized this was written in 2002. I wonder what the gun crime rate is now. Any government that tells you that you have no right to self defense is not looking after your best interest. Self defense is the most basic right anyone has. No government or police can protect you. I can’t believe you all allow this to continue. I keep a gun at home for self defense and have a license to carry it concealed any where I go. And I do. If I am attacked then at least I have a chance to stay alive. By the time the police arrive they can either arrange for my body to be picked up or take a statement from me. I choose the later. Britons let a right be taken from them and now it will be much harder to get it back. But you should try.
    ???? ????? ??????
    ???? ????? ??????

  29. I just realized this was written in 2002. I wonder what the gun crime rate is now. Any government that tells you that you have no right to self defense is not looking after your best interest. Self defense is the most basic right anyone has. No government or police can protect you. I can’t believe you all allow this to continue. I keep a gun at home for self defense and have a license to carry it concealed any where I go. And I do. If I am attacked then at least I have a chance to stay alive. By the time the police arrive they can either arrange for my body to be picked up or take a statement from me. I choose the later. Britons let a right be taken from them and now it will be much harder to get it back. But you should try.
    ???? ????? ??????
    ???? ????? ??????

  30. I just realized this was written in 2002. I wonder what the gun crime rate is now. Any government that tells you that you have no right to self defense is not looking after your best interest. Self defense is the most basic right anyone has. No government or police can protect you. I can’t believe you all allow this to continue. I keep a gun at home for self defense and have a license to carry it concealed any where I go. And I do. If I am attacked then at least I have a chance to stay alive. By the time the police arrive they can either arrange for my body to be picked up or take a statement from me. I choose the later. Britons let a right be taken from them and now it will be much harder to get it back. But you should try.
    ???? ????? ??????
    ???? ????? ??????

  31. I just realized this was written in 2002. I wonder what the gun crime rate is now. Any government that tells you that you have no right to self defense is not looking after your best interest. Self defense is the most basic right anyone has. No government or police can protect you. I can’t believe you all allow this to continue. I keep a gun at home for self defense and have a license to carry it concealed any where I go. And I do. If I am attacked then at least I have a chance to stay alive. By the time the police arrive they can either arrange for my body to be picked up or take a statement from me. I choose the later. Britons let a right be taken from them and now it will be much harder to get it back. But you should try.
    ???? ????? ??????
    ???? ????? ??????

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