Obama’s gun actions absolutely legal, profoundly right

01:40 - Source: CNN
Obama's emotional gun control speech in 90 seconds

Story highlights

Laurence Tribe: Some gun advocates wrongly slammed Obama's executive action as unconstitutional. But he's within legal authority

He says Obama is restoring integrity of Brady Act while upholding 2nd Amendment rights, not usurping powers of paralyzed Congress

Editor’s Note: Laurence H. Tribe is Carl M. Loeb University professor and professor of constitutional law at Harvard Law School. Watch President Obama as he joins Anderson Cooper and a live audience for a CNN prime-time event: “Guns in America,” at 8 p.m. ET Thursday.

CNN —  

Earlier Tuesday, in a deeply moving speech that brought many, including the President himself, to tears, President Obama unveiled several executive actions intended to curtail the prevalence of gun violence in our nation. Beyond the concrete actions he described, he may have hoped to educate and persuade the public, quoting Martin Luther King Jr. about the “fierce urgency of now.”

Laurence H. Tribe
Courtesy of Laurence H. Tribe
Laurence H. Tribe

Most Americans will recognize the common-sense steps announced today cannot prevent all gun abuse but will still welcome them as ways of reducing the continuing scourge of gun violence in this country.

Most but not all: Even these mild measures have been savaged by some, including those seeking the Republican presidential nomination, who insist that the President’s decision to act on his own initiative, rather than waiting for an increasingly dysfunctional Congress to tighten gun safety regulations, is unconstitutional – even tyrannical.

But if we take the time to examine exactly what President Obama is proposing, a crucial step that these critics seem to have skipped, we cannot avoid the conclusion that the measures he has outlined are well within his legal authority.

They are of course driven by the appalling frequency of mass shootings, including the recent tragedies in South Carolina and San Bernardino, and by the grim reality that approximately 30,000 Americans die from gun violence each year.

Some commentators have analyzed Tuesday’s executive actions in the shadow of Congress’ shameful failure in 2013, after the Sandy Hook massacre, to pass even limited laws to keep guns out of the hands of those who clearly shouldn’t have them.

01:31 - Source: CNN
What Obama's executive actions on guns will do

Congress’ inaction, despite strong public support for stricter gun control, undoubtedly reflects the outsized influence of the “gun rights” lobby. But we can’t infer from Congress’ inertia that the President lacks authority to take today’s actions on his own.

There may be extraordinary situations in which congressional dysfunction strengthens the President’s hand, but there’s no need to decide whether this is among them. Given the legal modesty of the measures announced by the President, Congress’ silence is simply irrelevant.

Some of what the President plans to do involves nothing beyond urging Congress to increase appropriations for enforcing existing laws. Other steps are purely administrative: using appropriated agency funds to modernize the electronic background check system with the best private assistance available, hire more personnel to process background checks, and encourage research into “smart gun” technology. Such prudent measures in no way impinge upon congressional prerogatives.

Critics have focused primarily on the President’s proposal to close the Internet loophole and the infamous “gun show loophole,” which lets sales at these temporary clearinghouses escape all federal background check requirements and thereby undercuts the entire web of federal regulations.

Gun control advocates have long lamented such gaps. And merely closing irrational holes in its fabric – holes that have too long let some gun sellers flout the clear meaning and purpose of federal statutes – is a way for the President to carry out Congress’ design, not revise it.

The 1993 Brady Act requires everyone “engaged in the business” of selling firearms to conduct background checks. It says someone is “engaged in the business” of selling firearms if he does so “as a regular course of trade,” a description that undoubtedly applies to all vendors who make their living selling firearms physically or online, at gun shows or anyplace else.

As Attorney General Loretta Lynch put it, “It is not where you are located, but … what you are doing that determines whether you are engaged in the business of dealing in firearms.”

Yet, largely as a result of the NRA’s democracy-distorting political clout, background checks have never been required online or at gun shows. By closing these infamous loopholes, Obama is restoring the integrity of the Brady Act, not usurping the powers of a nearly inert Congress.

That the President would have preferred that Congress take decisive action, and more expansive action than he can take himself via executive action, doesn’t mean that any of the measures pushes the edge of any legal envelope.

There is even less substance to accusations that the President’s actions will violate the individual right to bear arms guaranteed by the Second Amendment. The Supreme Court has recently given meaningful force to that guarantee in two landmark cases: McDonald v. City of Chicago and District of Columbia v. Heller.

Those decisions, however, invalidated only unusually restrictive local measures and established simply that Americans have a personal right to keep a firearm in their own homes for the purpose of self-defense, a position with which both the President and I have long agreed.

But as the President rightly emphasized Tuesday, the Second Amendment does not confer an unlimited, absolute right any more than does the First Amendment.

04:17 - Source: CNN
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The right to bear arms is subject to reasonable regulation and always has been. And the very fact that the right is enshrined in the Constitution ensures that reasonable measures to minimize gun violence don’t put us on a slippery slope to ultimate government confiscation of everyone’s weapons.

Although closing the gun-show and Internet loopholes by executive order may be legally modest, such steps are profoundly consequential as a policy matter. Permitting what amounted to unbounded “black sites” where firearms traffic could go undetected and unregulated has always been crazy.

By expanding the scope of the background check system and modernizing its administration, the President is making all of us a bit safer and is sensibly addressing a national crisis that our paralyzed politics has thus far been powerless to resolve.

I’m not one who has been shy in legally opposing the President’s policies when I believe them to fall outside the Constitution’s bounds. But having carefully reviewed the actions the President announced Tuesday, I have no question that they fall squarely within the scope of his authority.

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