The key question is how much President Obama might try to accomplish by executive action in the gray areas. It is possible that he can make background checks for gun buyers mandated by the Brady Bill more effective and efficient and also facilitate better sharing of mental-health information (if he is willing to take on the ACLU in doing so) by executive action. However, if he goes further and attempts to ban assault weapons or high-capacity ammunition magazines unilaterally, he will be on shaky legal ground. Although the Heller Court stated that the right to possess a firearm does not include the right to possess any kind of weapon for any purpose, it is unclear whether a blanket ban on assault weapons and high-capacity magazines (even if duly passed by Congress) would survive a Second Amendment challenge (it may depend, in part, on how such weapons were defined).
Moreover, an executive order banning assault weapons falls within the legislative authority of Congress, and thus implicates the separation-of-powers doctrine. Indeed, Congress has acted in this area, passing a ban on assault weapons and high-capacity magazines in 1994, and — equally significant — also has chosen not to act since the ban expired in 2004. Should the president attempt to supersede Congress’s clear legislative prerogative in this area by executive order, one would expect the courts, under the rationale of Youngstown Sheet & Tube, to strike his measure down.
As important, if the president decides to bypass the legislative process and act unilaterally to limit guns, he will be courting a political disaster. The NRA is not some fringe group of irrational gun nuts seeking to take advantage of the Sandy Hook tragedy to drum up members and donations, as the mainstream media and even the president have implied. Rather, it represents the serious concerns of millions of law-abiding Americans, from both parties, who value their Second Amendment right to gun ownership for self-defense, sport, and protection against disorder or government tyranny, as the Framers originally intended. The president once derisively talked about “bitter” small-town residents’ “cling[ing] to guns or religion.” Well, nothing would make people cling harder to their guns than an effort to ban them by executive fiat. And the courts, most likely, would support them.
The Washington Post recently released a poll showing that a small majority of Americans are more likely to support gun-control measures in the wake of Newtown. If the president taps into that underlying support and is able to approach the matter with a spirit of compromise — and as part of a larger package that must also include serious proposals to better identify and compassionately treat mentally ill individuals who might be prone to violence, and efforts to have the entertainment industry tone down the indiscriminate killing without consequence in video games, television, and movies — perhaps Washington will surprise us and some reasonable gun-control measure could pass. (Whether it would be effective or not is a different question.) Thus, the president should not throw up his hands and conclude that a legislative effort is too difficult to pursue. The political process really is the only way — banning guns by executive order would be unnecessarily provocative and legally unsustainable, and it may not even prevent the next Newtown, which, after all, is supposed to be the goal.
— Scott A. Coffina is a former associate counsel to President George W. Bush and a former assistant United States attorney. He currently is a partner at Drinker Biddle & Reath.