Monday, January 04, 2016

Obama's "Alice in Wonderland" legislation

“If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn't. And contrary wise, what is, it wouldn't be. And what it wouldn't be, it would. You see?” 
(Alice, in Alice in Wonderland)

The thing is ... Obama's latest and greatest pitfalls for legal gun owners requires us to be what we are not; and if we are not, then we shouldn't be.    But still, we are, and we should. You see?

Obama's gun control options each have legal pitfalls | Reuters:
January 03, 2016
The Washington Post and Politico reported late last week that one of Obama’s main proposals would require some unlicensed gun dealers to get licenses and conduct background checks on potential buyers. Current law exempts smaller dealers who often operate at gun shows and sell online. Obama, who has been thwarted by the Republican-controlled Congress in his push for tighter gun control legislation, could act through an executive order, which would be immediate and carry the force of law. It would also almost certainly prompt lawsuits by gun advocates claiming the president lacks the authority to change the legal definition of who must obtain a dealer’s license.  (emphasis added)
So, what is "an executive order"?   Can the President impose one arbitrarily, without oversight from the Legislative Branch?

According to the online Legal Dictionary:
Most executive orders are issued under specific statutory authority from Congress and  have the force and effect of law.  Such executive orders usually impose sanctions, determine legal rights, limit agency discretion, and require immediate compliance.   Federal courts consider such orders to be the equivalent of federal statutes.  In addition, regulations that are enacted to carry out these executive orders have the status of law as long as they reasonably relate to the statutory authority.   An administrative action that is carried out under a valid executive order is similar to an agency action that is carried out under a federal statute.  In each case, the agency's authority to enact rules and to issue orders comes from Congress. (emphasis added)
Presidential Executive Orders can NOT be imposed (or "carry the force of law") if Congress does not agree that the context of the Executive order agrees with the content and intent of the  Constitution.

Which is to say that the Presidential Executive Order is NOT LEGAL if it is not "Constitutional".

Now, if Obama's intent is to "... require some unlicensed gun dealers to get licenses and conduct background checks on potential buyers ....", then perhaps he should look at the existing administrative barriers which prevent individuals from qualifying for a 'gun dealer license.
 There are many people who would sell a 'large volume' of firearms, but who would not currently qualify for a dealer license.  Is this a "Catch 22"?

And just what constitutes a "Dealer", anyway?  Is the criteria for definition of a "dealer" the volume of business conducted by an individual?  If so, is it the volume in terms of Number Of Firearms Sold Per Anum, or is it the Cash Value of Firearms Transactions Per Anum?

This is a grey area which has been conveniently allowed to endure for decades, by the government; and we can only guess why they have been reluctant to resolve the issue.

Our President seems to require those of us who would sell even a minimal number of firearms (not defined in federal law) to register as "Dealers", but he/they will not define the term for our edification.

1 comment:

Anonymous said...

This is not unusual for POTUS. He does as he wants, tends to ignore existing law and regulation if he finds them inconvenient. He ignores federal and state court orders and judges also. His administration ignored a federal judge's orders in regard to the BP Gulf Oil spill and continues to ignore those orders. He and his administration have been ignoring a federal judge's orders, backed up by orders from a circuit court regarding illegal immigration. He routinely ignores the law and congress, especially regarding Obamacare. He knows congress will not impeach him and he owns the justice department and all federal law enforcement, as well as the military. So, who is going to stop him from doing what he wants? No one.