Article 1 of the Constitution vests exclusive federal legislative authority or the power to make laws to the House and Senate. Article 2 vests exclusive federal executive authority or the power to enforce the laws passed by the legislative authority to the President. While there is some overlap, for example, the Legislature can empower executive agencies it establishes to make rules and regulations to aid enforcement by the executive authority, this is a power that still originated with some guiding âintelligible principleâ as defined by Congress. And while the President has executive authority to make federal agencies more efficient in the manner in which they carry out legislative acts, the Presidentâs use of his executive powers must be confined to and arise from some legislative act that delegated authority to the President to carry out some act of Congress. So the President would overstep his bounds by using his executive powers to make laws.
There are exceptions (the power to make war does not originate with the Executive though since Vietnam this is less clear). And presidents have used their executive powers more and more to âmake lawâ when it is not clear that Congress has delegated any remote authority to do so.
It is probably clear that any presidentâs use of his executive authority to ban assault weapons would violate the separation of powers principle because not only has Congress not delegated any such authority to him, it has repeatedly rejected its own legislative bills to do so as part of its law making authority.
The roadmap to change the way Congress consistently acts as a tool of the NRA is to change the Congress.f
Iâm not equipped to discuss the evolution of the legal reasoning; but it seems apparent that that leap followed the move to the right in the Republican party engineered by âmovement conservatives.â
The NRA used to be an organization that actually promoted genuine gun safety, including sensible regulations. By the late 1970s, it had been taken over by the same kind of right-wing interests that had mobilized formerly apolitical Christian fundamentalists (who werenât initially energized by legal abortion, which they saw as a Catholic issue), and that funded âthink tanksâ tasked with formulating new, more appealing ways to sell the policies (tax cuts et al.) that were being rejected by most voters. The gun issue was useful as part of the âgovernment is the enemyâ theme of the right, both for the Bircher types (like the Koch brothersâ father) and for the gun manufacturers, for whom the NRA is effectively their lobbyist.
Speaking strictly from what I do know of the legal justifications the right has used in other areas (health care most prominently in the past few years), Iâd guess that a study of how we got to Heller would look a lot like how we got to other decisions that had seemed preposterous because of the willful inconsistency involved in getting to them (Scalia occasionally contradicted his own prior decisions when something he didnât like was at issue): they knew the outcome they wanted, and worked their way back to construct an argument that would get them there. The âintellectualâ arm of modern movement conservatism, from the Heritage Foundation to the Federalist Society, is above all an exercise in political marketing. IMHO; IANAL.
My point is not what we ban but how. Whether quick change 30 round magazines is the problem or the kind of weapon itself, we need a national or uniform gun policy not a state by state patchwork of some lenient, some tough laws. Such a patchwork of different laws can always be defeated by the profiteers- the traffickers. However a federal agency with real teeth not set up to fail by a NRA controlled Congress could actually reduce gun deaths by first researching gun violence to identify solutions and second setting federal standards that eliminate the profit motive that drives the trafficking among the states⌠because the prohibitions and policies are uniform throughout the nation.
