Gun Control, Congress and the Second Amendment

Yesterday, dear readers, we talked about three items that will be prominent in this week's news. Today, we should discuss a fourth item that will be dominant for the next several months. It is the question of gun control under the Second Amendment of the US Constitution. What would be a normal battle of wills between the President and Congress when they disagree about how to handle any specific issue becomes fundamental when it involves the Constitution - as gun control does because of the Second Amendment's proscription : "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." In the wake of the Newtown killing of 26 children between 6 and 7 years of age, and the renewal of the American debate on gun control as a preventive against mass murders, President Obama told the White House press corp yesterday that he is reviewing actions, including issuing executive orders, where he could take action without congressional approval to confront gun violence in the nation. Obama said he would present a plan within days. The options include stronger background checks, a meaningful ban on assault weapons, and limits on high-capacity ammunition magazines. Obama said that he is unsure if such steps could pass Congress. Thus his reference to the use of executive orders : “I’m confident there are some steps we can take that don’t require legislation and that are within my authority as president,” Obama said.“ Such hints from the White House in the last two weeks has prompted a second discussion -- is it possible for a President to overide a constitutional provision by avoiding Congress and opting for presidential decrees called executve orders. Ronald Reagan's Attorney General, Ed Messe, has added his opinion to that of several law professors and the legal reporter for CNN : "It would not be legal. It would not be constitutional,” Meese told Newsmax. “And, indeed, if he tried to override the Second Amendment in any way, I believe it would be an impeachable offense.” So, Americans will be presented not only with questions about how and whether to control guns but also with how such controls, if any, would be enacted. The idea of tougher gun laws has brought fierce resistance from the National Rifle Association and other gun-control advocates, as well as from members of the House and Senate, both Democrat and Republican. The NRA contends that their meeting last week with Vice President Joseph Biden’s gun-violence task force became a strategy session on how to thwart the Second Amendment. “It should be remembered that the president cannot by executive order do things that affect the public at large unless there is some congressional basis for it,” Meese told Newsmax. “In other words, some Congressional authority he has been given. An executive order without specific congressional authority can only apply to those portions of the government that are under his control — in other words, the executive branch. Now there are some things he can probably do in regard to the actions of the Bureau of Alcohol, Tobacco, Firearms and Explosives, or some other governmental agency in its operations.“ But, explained Meese, if President Obama moves unilaterally on the gun issue, “Then, it would be up to the Congress to take action, such as looking in to it to see if, in fact, he has really tried to override the Constitution itself,...In which case, it would be up to them to determine what action they should take — and perhaps even to the point of impeachment.” Impeachment is controlled at the federal level by Article II, Section 4, of the US Constitution : "The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or other High Crimes and Misdemeanors." The House of Representatives has the sole power of impeaching, that is of investigating and voting to impeach. The Senate has the sole power to try all impeachments. The removal of impeached officials is automatic upon conviction in the Senate. In Nixon v. United States (1993), the Supreme Court determined that the federal judiciary cannot review such proceedings because they are constitutionally under the sole control of Congress and, thus, political in nature. So, the problem for opponents of gun control by executive order becomes political, too. A 2/3 vote is required for the Senate to impeach and remove someone, here Obama, from office. But, the Democrats control the Senate and would block a vote for impeachment. The only solution is for the GOP to win a 2/3 Senate majority in the 2014 elections. An almost impossible task. This is why President Obama is so sure of his position.