Monday, November 19, 2018

Two Executive Second Amendment Actions Available to President Trump?

What can President Trump accomplish in the wake of the 2018 mid-term elections, with respect to the Second Amendment?

The Democrats, with the aid of their colleagues in the media, have managed to take control of the House of Representatives.

At the same time, the Republicans have gained seats in the Senate, cementing their control there, especially with the retirement of Senator Jeff Flake and the death of John McCain.

Given the new reality, Donald Trump's presidency has gained some potential  and lost some potential.

The losses are real. They mean little legislation will be passed.  I do not expect any positive legislative reforms to restore Second Amendment rights to pass in the next two years. The House will work to bog down the executive branch with frivolous investigations.

The gains are real, and can be acted on. President Trump now controls the executive branch more effectively than he has previously.

President Trump can issue executive orders. He has more latitude to pick his cabinet and have his selections approved by the Senate. He can work with his new AG to clarify existing law.

The first action: 

Many Federal gun free zones are based on interpretation of 18 U.S. Code § 930 - Possession of firearms and dangerous weapons in Federal facilities.

The relevant paragraphs are (a) and (d).

(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.

(d) Subsection (a) shall not apply to—
(1) the lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof, who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of law;

(2) the possession of a firearm or other dangerous weapon by a Federal official or a member of the Armed Forces if such possession is authorized by law; or

(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.
The new U.S. Attorney General can issue an opinion that self defense is a lawful purpose for the carry of firearms under (3). It is hardly a controversial opinion. All 50 states and the District of Columbia issue permits specifically for people to carry firearms for the purposes of self defense.

In spite of the obvious nature that carrying a firearm for self defense is a lawful purpose, expect much wailing in the media about such a move "making us less safe". Exactly the opposite is the case. Expect some semi-retired judge in a deep blue state, most likely in the Ninth Circuit, to place an injunction on any action based on the opinion. With any luck, such an injunction would be appealed to the Supreme Court.

Second action:

Have the Secretary of the Treasury issue an amnesty for the registration of items requiring a tax stamp under the National Firearms Act (NFA).

When the Gun Control Act of 1968 was passed, the Congress concurrently passed a bill to allow an amnesty for people who had possessed unregistered NFA items. No fingerprints or tax was required.

Fill out a paper form and send it in, and your NFA item was registered.  The initial amnesty was for 30 days in 1968, from October 2nd to November 1st. The law contained a provision for further amnesties at the discretion of the Secretary of the Treasury. They need to be announced beforehand in the Federal Register. From PUBLIC LAW 90-619-OCT. 22, 1968, found on page 1236 of United States Statutes at Large Volume 82.djvu/1278:
(d) The Secretary of the Treasury, after publication in the Federal Register of his intention to do so, is authorized to establish such periods of amnesty, not to exceed ninety days in the case of any single period, and immunity from liability during any such period, as the Secretary determines will contribute to the purposes of this title. TITLE III — AMENDMENTS TO TITLE VII O F THE OMNIB U S C R I M E CONTROL A N D S A F E S T R E E T S ACT O F 1968
I do not believe this statute has ever been repealed or superseded. It appears to be effective law.

In 1968, there was an expectation that amnesties would be a common, regular occurrence to bring unregistered NFA items into the legal fold. No Amnesty has been announced in the last fifty years. It is past time to do so. With the current ruling by the BATFE that "bump stocks" are NFA items, all existing "bump stocks" should be included in an amnesty.

The Secretary of the Treasury should declare a 90 day amnesty for the registration of all NFA items. As a backup, because the BATFE has been transferred to the Department of Justice, the Attorney General should be ready with a duplicate declaration.

Partial amnesties have been pushed in Congress in recent years, for the purpose of registering war trophies brought home by returning veterans.

Some will argue these actions will incite the media to a greater condemnation of President Trump. I doubt the media can exceed its current level of 90% negative coverage of the President.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

1 comment:

Anonymous said...

Original intent, there are no valid constitutional laws or regulations concerning Second amendment issues. The second amendment was written to give citizens a positive guard against a tyrannical government. The right of the citizen to keep and bear arms shall not be infringed. the word Infringed was used because it is an all inclusive term. the word Shall was used because it is a legal term used to make its subject an absolute command. The second amendment provides individual security for defense of the home land, defense of self, defense of the defenseless and defense of property of any definition. The militia was defined as any one over the age of 18 years and male and instructed to bring your own weapons if called to action. The framers of the constitution were intelligent enough to expect new inventions and progress in all aspects of life and equipment in designs of fire arms and transportation and every thing. from pony express to telephone to computers and satellites. Muzzle loader to lever action to lazars. The constitution makes it very clear, the constitution can not be amended without the approval of the citizens. Congress has no authority to change or modify the constitution by passing laws or acts. The constitution was written to be enforced as written without bias or opinion or substitution or interpretation. God gave man the right of self defense, the constitution forces the government to guarantee that right. The constitution was written under what was English contract law of the time. all parties to the contract must agree to any change in wording or effect.