Executive orders and firearms

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orpington

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First, let's not get too political or else this thread will get closed.

Executive orders have recently been in the news. I thought they were rarely used, or to be honest, I thought not much about them at all as they don't pertain to me, I don't think. But recent news stories suggest they are fairly commonplace.

My take from the recent election is that having a president and one legislative branch of one party isn't of much concern as the other legislative branch could just block any legislation from being passed. Or, if the President doesn't like what both legislatures have passed, he can block that. Isn't that a veto?

Now, relative to firearms...

So, does an executive order allow for a president to do whatever he or she wants, bypassing both legislatures? So what's to prevent a generic President B at some point in the future from passing an executive order that bans all handguns, bans all firearms, does not allow for the sale of existing firearms, bans ammunition, or doing whatever or not he or she wants to do that is anti 2A?

I guess I should have paid more attention in 8th Grade social studies. If I understood it all I wouldn't be asking this question.

Also, relative to firearms, let's say President X and legislative branch Y decide to ban handguns, for example, but legislative branch Z decides against it and it doesn't become law. Or, both legislative branches vote on something and it still doesn't get passed, these are all possibilities, the last part about not being passed being a veto by the President blocking both legislatures who might have agreed to abolish the Gun Control Act of 1968, for example, just to create an example.
 
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Executive Orders have been used in the past to direct the BAFTE to reclassify certain firearms as not having a sporting use for purposes of importation.

In theory, any law where the Attorney General has discretion to approve or disapprove certain imports can be subject to an executive order.

In theory, an executive order could also halt the processing of NFA tax stamps, blocking the sale or transfer of SBRs, SBSs, or Suppressors.

Fortunately, NICS background checks are set in statute, and an executive order could perhaps slow or stop the checks, but if there is no answer from the FBI after three business days, the transfer may proceed at the transferrer's discretion.
 
So, the President cannot issue an executive order creating whatever gun laws he or she wishes to enact, no matter how sensible or insensible?

I assume not, or else some President would have done so already, no doubt.

If not, what prevents this from occurring? From the response, above, a President cannot override a statute???
 
The President cannot make law, nor can he change law through an Executive Order. An Executive Order simply directs persons subject to the President's orders to conduct, or not to conduct, their governmental affairs in a particular manner. They can change the way a governmental agency enforces law, but only within the boundaries of the law.
 
What about President X orders BATF to regulate certain firearms as NFA and then increases the NFA tax 20-fold ? Think this cannot happen ? It is being discussed in the news right now and IMHO will be upheld since it is not law but regulation and taxes which the executive branch has undeniable authority to execute. No legislation needed.
 
SharpDog said:
What about President X orders BATF to regulate certain firearms as NFA and then increases the NFA tax 20-fold ? Think this cannot happen ? It is being discussed in the news right now and IMHO will be upheld since it is not law but regulation and taxes which the executive branch has undeniable authority to execute. No legislation needed.
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The $200 tax amount is set by law, and it would take legislation to change it.
 
Executive Orders are the means by which The President turns existing Law into action.
Executive Orders do not turn action into existing Law.

This currently floated notion that The President can simply bypass Congress to get what some particular political group wants... is hogwash.

... but it may take the Courts to slam the door after he opens it.
 
wiscoaster said:
They can tax you for registering it, if currently owned firearms will be required to be registered.
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yes, that is what they are discussing. I would post a link but it would be political.

This has been discussed in other threads: I was going to link them but they are closed and I want to honor the OP's wishes to not get political.

However, IMHO, there is nothing stopping them from making certain items NFA and raising a heavy tax on them. They are vowing to do so.

See my signature.
 
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By taxing firearms, you mean that the Federal government would send a bill based on the value of your firearms and you pay it annually, just like property taxes? Is that Constitutional? As in the right to bear arms shall not be infringed.
 
Well, without congressional action amending the NFA, the tax stamp would remain at $200 per item registered, however, one proposal is to have any semi-auto firearm capable of accepting a magazine of greater than 10 rounds reclassified as an NFA item. Which, would encompass nearly every semiautomatic (rifle or pistol) with a detachable box magazine, as aftermarket magazines are often available with more than 10 rounds even if the OEM mags are not. Furthermore, the proposal would also require a tax stamp for said magazines with capacities greater than 10 rounds. So, for example, you have a bog standard G17 with 2 spare mags, thats $200 for the pistol and $200 for its magazine and an additional $200 for each spare magazine...which all would require engraving per NFA guidelines. So, for a fairly pedestrian handgun, one would incur a tax liability of $800, and engraving fees of around another $200. That's $1000 for one handgun
 
Now, here's the problem with the above mentioned proposal, notwithstanding that it is clearly an infringement of the right to keep and bear arms. There are fork-ton of firearms that would fall into this new class of nfa classification. Being durable items, many firearms from the dawn of semi-auto development are still operational. So 120 years of semi-auto firearms, the vast majority of which accept detachable box magazines, would need to be registered and taxed. From C96 Broomhandles to Springfield Hellcats...A6 Meuniers to M1 carbines, to a plethora of AR15 variants. Tens of millions, and tens of millions more of 10+ round magazines. At $200 a pop, we could wipe out the national debt. But, in reality that's not going to happen, so the proposal kindly offers an option for the federal government to purchase your newly classified nfa items from you... Ok, so to play devils advocate, let's say every gun owner plays by the rules and goes along with this. Sure, some folks will pony up and pay the tax, but, being prohibitively expensive, the majority of items in circulation will be purchased by the government. Even at laughably low compensation...it would bankrupt the government. Just look to any state or local gun buyback program for reference. It's an unworkable endeavor in success or failure. The reason the NFA was able to be implemented in '34 was there were relatively few machine guns owned by private citizens at the time, and (if I'm not mistaken) there was no fee to initially register them, only to transfer them after the fact. Ok, that's it for now. I'll get down off the soapbox. Write your representatives, email, snail mail, carrier pigeon...whatever you gotta do. Be respectful, and to the point.
 
bersaguy said:
...one proposal is to have any semi-auto firearm capable of accepting a magazine of greater than 10 rounds reclassified as an NFA item. ...
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That would also require Congress changing the law.

Folks need to better understand what an Executive Order is. An Executive Order is a statement of policy and instruction from the President, as the senior manager of the Executive Branch, to the organizational units that report to him; and it must be consistent with and supported by existing law:
... Under our system of government, the president’s authority to issue such orders (or to engage in any other form of unilateral executive action) must come from the Constitution or federal law. Put another way, an executive order can be used to execute a power the commander in chief already has. It can’t be used to give the presidency new powers....
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So, the answer to the OP's question:
orpington said:
...does an executive order allow for a president to do whatever he or she wants, bypassing both legislatures?...
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is 'no."

Beyond that, we can only guess what a president might decide to legitimately do by Executive Order.
 
orpington said:
By taxing firearms, you mean that the Federal government would send a bill based on the value of your firearms and you pay it annually, just like property taxes? Is that Constitutional? As in the right to bear arms shall not be infringed.
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Depends on how it is done. If said tax bill originates in the House of Representatives, as all tax bills do, and passes there and the Senate, and is signed into law...yeah, that's Constitutional. There is already a precedent for an excise tax on sales of new firearms known as the Pitman-Robertson Act that taxes all guns and ammo. The Supreme Court has allowed that to stand since 1937. However, the the current court may view an annual property tax on firearms as an infringement.

(For discussion sake, I'm surprised that Pitman-Robertson has stood. It is, in essence, a tax on a Constitutional right, much like a poll tax, which have long been prohibited by the court.)
 
SharpDog said:
So I guess they cannot tax you again for purchasing an item ...
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wiscoaster said:
They can tax you for registering it, if currently owned firearms will be required to be registered.
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You have to look at how the NFA tax is structured. The tax is imposed on the transfer or making of an NFA firearm. Not on ownership. Initial registrations when the law changed, both in 1934 and 1968, as well as on occasions such as when "street sweeper" shotguns were reclassified as NFA, have always been free. That's not because of the "generosity" of the government. It's simply because of the way the law is written.

That could change, but both houses of Congress plus the President would have to agree. That's not happening any time soon.
 
AlexanderA said:
You have to look at how the NFA tax is structured. The tax is imposed on the transfer or making of an NFA firearm. Not on ownership.
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Interesting. That negates my earlier post about taxation of a Constitutional right. However...

Would such a requirement to register semi-autos as NFA items amount to "opening the book" or "opening the registry?" As I understand it (and I'm no expert), GCA 68 "closed the book" on full auto firearms. No new ones can be made or imported, except for government agencies. (Hence the insane prices for transferable full autos-it's an artificial supply shortage.) But if the government is going to open the book to add new NFA items to the registry....see where I'm going with this? I could see an opportunity for the few people who have those NFA manufacturer licenses to quickly crank out a bunch of full auto capable AR lowers and register them. Doubtful they could make a dent in the demand (and subsequently, the price) but you get the idea.

AlexanderA said:
That could change, but both houses of Congress plus the President would have to agree. That's not happening any time soon.
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That is yet to be decided. Those two races in Georgia in January hold the balance. I can envision the worst happening. (And that is as much as I will say of that.)
 
D.B. Cooper said:
Interesting. That negates my earlier post about taxation of a Constitutional right. However...

Would such a requirement to register semi-autos as NFA items amount to "opening the book" or "opening the registry?"

As I understand it (and I'm no expert), GCA 68 "closed the book" on full auto firearms. No new ones can be made or imported, except for government agencies. (Hence the insane prices for transferable full autos-it's an artificial supply shortage.) But if the government is going to open the book to add new NFA items to the registry....see where I'm going with this? I could see an opportunity for the few people who have those NFA manufacturer licenses to quickly crank out a bunch of full auto capable AR lowers and register them. Doubtful they could make a dent in the demand (and subsequently, the price) but you get the idea.
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As the law stands right now, for anything other than machine guns, the registry is open for new registrations and transfers. SBRs, SBSs, AOWs, DDs, silencers.

The Hughes Amendment to the 1986 Firearm Owners Protection Act prohibits non-licencees from registering newly made MGs. Licencees are still able to manufacture and register new MGs, but are prohibited from transferring them to average civilians. Interestingly enough, the is no federal prohibition for the transfer of post-86 MGs by or from governmental agencies... IE, if you could convince the local sheriff to sell you one of the department's M-16s, you would be able to submit the registration, pay the tax, and, eventually, take possession of the post-86 MG.

There is no way to forecast what new legislation would do with respect to the NFA, but it is silly to think a congress intent on further restricting firearms would word legislation designed to create a new NFA category in such a way as to open up civilian registration and transfer of new machine guns.
 
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Is the classification of a firearm made by law or by E.O.? For example, consider the AR pistol. Could an executive order be used to reclassify AR pistols in such a manner that they could be subject to NFA regulation (for example, reclassify them as an AOW?) Or would that require a change in law?
 
tifmanga said:
Is the classification of a firearm made by law or by E.O.? For example, consider the AR pistol. Could an executive order be used to reclassify AR pistols in such a manner that they could be subject to NFA regulation (for example, reclassify them as an AOW?) Or would that require a change in law?
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The definitions of various firearm types are laid out in 18 USC 921 and 26 USC 5845.

In the case of handguns (pistols):
18 USC 921 said:
(29)The term “handgun” means—
(A)a firearm which has a short stock and is designed to be held and fired by the use of a single hand; and
(B)any combination of parts from which a firearm described in subparagraph (A) can be assembled.
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In the case of AOW:
26 USC 5845 said:
(e)Any other weapon
The term “any other weapon” means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.
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Where it gets tricky is the way these definitions are interpreted by the ATF. For example, what exactly does it mean to be designed to be held and fired by the use of a single hand? Is the handguard on an AR-15 pistol a design feature to facilitate the use of a second hand?

To further muddy the water, what does it mean to be capable of being concealed on the person? Current ATF interpretation is anything less than 26" OAL... which is why you see lots of AR-15 "firearms" without stocks (presumably a pistol) and without a forward grip (definitely designed to accommodate a second hand) being sold with lengths just over 26" as neither pistols, AOWs, or rifles.

The ability of the federal agencies to interpret the meaning of terms in law goes into Chevron and Auer Deference, which (for the layman), basically means that the courts will defer to the agency's interpretation of the law where the law does not provide a clear meaning.

Want to be really worried about it? Take a look at the definition of a machine gun:
26 USC 5845 said:
(b)Machinegun
The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
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With the existence of drop-in auto-sears, what is stopping a federal agency from determining that the AR-15 design (minus rifles equipped with the various measures Colt took in the 90's and earlier to prevent auto-sear functionality) can be readily restored to status as a machine gun?
 
Trump signed an executive order that put the previously legal bump stocks that made it easier to bump fire a shouldered rifle, in the same category as a machinegun. No grandfather, no compensation, get rid of it or become a felon.

On December 18, 2018, Acting Attorney General Matthew Whitaker announced that the Department of Justice has amended the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), clarifying that bump stocks fall within the definition of “machinegun” under federal law, as such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.
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https://www.atf.gov/rules-and-regulations/bump-stocks

Lots of people didn’t care but my first thought was what happens when a more anti gun POTUS has someone inform him that any semiauto can be bumpfired even without a “device”?

Seems like one EO away from getting rid of all semiautomatic firearms, in existence that are not already in the registry as machineguns.

Worth pointing out that this is false.
allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.
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The reason they were legal is that they required one trigger pull per shot fired. Just like the Akins accelerator and the AW-sim, unlike those two the slide fire used no springs for return, rather the shooter has to provide the force to push his finger back into the trigger to depress it for each subsequent shot fired.
 
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jmorris said:
Trump signed an executive order that put the previously legal bump stocks that made it easier to bump fire a shouldered rifle, in the same category as a machinegun. ...
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  1. Cite the Executive Order. There was no such Executive Order. Trump directed the Attorney General to review the status or bump stocks and to review the question. That is not an Executive Order.

  2. The ATF began the Rule Making process under the Administrative Procedures Act (5 USC 551, et seq) proposing regulations classifying a bump stock as a machinegun and requesting public comment on the proposed regulations.

  3. Final regulations were promulgated in December of 2018.

  4. There has since been litigation challenging those regulations.

    • Perhaps most notably, Clark Aposhian filed suit in federal court seeking, initially, a preliminary injunction against implementation of those regulations.

    • The preliminary injunction was denied by the District Court, and the denial was affirmed by the 10th Circuit (Aposhian v. Barr, 958 F.3d 969 (10th Cir., May, 2020)).

    • However, on September 4, 2020, the 10 Circuit agreed to rehear the case en banc, vacating the May, 2020 decision.

  5. This is not the first time some action undertaken by one branch of our federal government as been challenged as being outside the powers of that branch or having been improperly executed; and it won't be the last. Which is why our system of checks and balances is so important.

When dealing with legal subjects, details matter.
 
I hate to seem nitpicky, but it looks like we need to understand that there is a difference between an Executive Order, as described by Frank in post 15, and an order from the executive, which is what we get when the pesident calls someone who reports to him and says do so and so. I can see why people might be confused.
 
We need to read (and to heed) Frank's words closely.

An Executive Order has to do with operations of the Executive Branch.
The Branch of government which Executes the operations of said government.

Now, presumably, a POTUS could order federal law enforcement to do this or do that. The test of such execution would be answered in the the Courts and by Legislation.

So, say a POTUS wrote an E.O. forbidding news reports over radio. That would be challenged immediately as the FCC legislation requires licensed broadcasters to disseminate news as public service as part of their licensing.
 
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