Executive orders and firearms

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Adding weapons to the NFA under the '68 GCA was termed an amnesty, and no tax had to be paid (and no questions as to origin either).

We can hope the same thing will apply if so enacted in the future.

Conelrad
 
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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.
Bringing semiautomatics under the NFA could be done in one of two ways:

The straightforward way would be to amend the NFA to create a new category (not affecting the existing categories and therefore not opening the Hughes MG freeze). But the votes just aren't there in Congress to do this.

The other way, if an antigun Administration really wanted to push the envelope, would be to administratively redefine semiautomatics as machine guns on the ground that they're "readily convertible" to full automatic. This would run into immediate problems with retroactivity and the interplay with the Hughes Amendment. In an effort to rescue this plan, I can see antigun members of Congress joining with pro-gunners to repeal Hughes and open the registry. That's the only way that would ever happen.
 
As I understand it, for the most part, executive orders are only applicable to the executive branch. If a POTUS wants to impose some policy by executive order on the nation as a whole, he needs the support of some enabling legislation. If I remember my history correctly, back in the 1930's FDR's initial attempt to outlaw private ownership of gold was thwarted by the lack of such enabling legislation - a lack which was promptly "corrected" by the legislature, and of course gold possession and ownership was eventually outlawed. (With limited exceptions.)

I don't know if there is such enabling legislation in effect for domestic firearm law - but I'm fairly sure POTUS can meddle in imports pretty freely thanks to executive branch powers over foreign affairs, so at the very least I see Biden/Harris clamping down on all manner of firearm related imports. IIRC, Bush 41 restricted imports of various items from "assault weapons" to elephant ivory via executive order.

(Thinking back now, weren't some rotary magazine shotguns reclassified as DDs during the Clinton administration? Stryker 12 and Street Sweeper? And weren't both of them actually imports?)
 
I promise I’m not posting this to be demeaning, sure it’s childish but it’s also quiet accurate and educational.

It answers the how laws are made part of the OPs question, it doesn’t address the executive order part. Which has been addressed quiet well by already.
 
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:

So, the answer to the OP's question:
is 'no."

Beyond that, we can only guess what a president might decide to legitimately do by Executive Order.

While on the topic I have a question, would it be correct to say a President can “effectively” disregard some laws by EO. Saying yes it’s illegal, but the executive branch isn’t going to execute it.

Marijuana comes to mind, illegal on a federal level but not enforced (at least significantly) by the last 2 administrations. Though I have no idea if that was done by EO or some other means. It seems some immigration laws may be or have been in this seemingly grey area, again not sure.

If this is possible could a president one day pass an EO saying they will stop enforcing the NFA, obviously that’ll never happen. I’m just wondering if it is possible.


I also understand individual states are an entirely separate thing, so if that did happen their would still be other laws, similar to people still going to prisons for marijuana charges.
 
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While on the topic I have a question, would it be correct to say a President can “effectively” disregard some laws by EO. Saying yes it’s illegal, but the executive branch isn’t going to execute it.

Yes. The executive branch is the enforcement arm (hence the Attorney General/DOJ is a cabinet level agency.)

Marijuana comes to mind, illegal on a federal level but not enforced (at least significantly) by the last 2 administrations. Though I have no idea if that was done by EO or some other means. It seems some immigration laws may be or have been in this seemingly grey area, again not sure.

You had to go there, didn't you. Couldn't just leave it alone. (There is some sarcasm there.) The Obama administration chose not to enforce federal marijuana laws inside Colorado after their 2012 legalization vote. It may have been an EO or, more likely, a simple directive to the Atty General. That, of course, encouraged a whole bunch of other states. I don't even want to discuss this further.

If this is possible could a president one day pass an EO saying they will stop enforcing the NFA, obviously that’ll never happen. I’m just wondering if it is possible.


I also understand individual states are an entirely separate thing, so if that did happen their would still be other laws, similar to people still going to prisons for marijuana charges.

If a state has a law banning NFA type items, and the Feds stop enforcing the NFA, the state authorities can enforce their own NFA type laws within their boundaries. This is true, even if NFA were repealed by an act of Congress.
 
I promise I’m not posting this to be demeaning, sure it’s childish but it’s also quiet accurate and educational.

It answers the how laws are made part of the OPs question, it doesn’t address the executive order part. Which has been addressed quiet well by already.


Thanks.

Between this and the other recent EO thread, I wonder: do they not teach this stuff in school any more?
 
I'll assume this to be a rhetorical question.

They are at my kids school, but we sacrifice to put them through private school for this and MANY other reasons. Public schools generally are not a proponent of teaching critical thinking, freedoms, love for ones country and pro-2A as well as other amendments. My kids schools administration and some teachers and staff conceal carry on campus and know there is subvert and overt evil in this world so they prepare with what they teach and what security they have respectively.

it is more critical than ever that the next generation understands the three branches of government, balances of power and limits of elected officials; for many reasons with one very important reason being the citizens 2A rights.
 
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Trump didn't use a "executive order" on bumpstocks but rather a "memorandum" as shown below. It was how it was worded that Trump was placing pressure on the Dept. of Justice to "comment a rule banning all devices that turn legal weapons into machineguns," obviously we all know bumpstocks do not turn a legal weapon into a machinegun. The letter of the law under the National Firearms Act states, "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" under code 26 U.S.C. § 5845(b).

Presidential Memorandum on the Application of the Definition of Machinegun to “Bump Fire” Stocks and Other Similar Devices
Issued: February 20th, 2018

After the deadly mass murder in Las Vegas, Nevada, on October 1, 2017, I asked my Administration to fully review how the Bureau of Alcohol, Tobacco, Firearms and Explosives regulates bump fire stocks and similar devices.

Although the Obama Administration repeatedly concluded that particular bump stock type devices were lawful to purchase and possess, I sought further clarification of the law restricting fully automatic machineguns.

Accordingly, following established legal protocols, the Department of Justice started the process of promulgating a Federal regulation interpreting the definition of “machinegun” under Federal law to clarify whether certain bump stock type devices should be illegal. The Advanced Notice of Proposed Rulemaking was published in the Federal Register on December 26, 2017. Public comment concluded on January 25, 2018, with the Department of Justice receiving over 100,000 comments.

Today, I am directing the Department of Justice to dedicate all available resources to complete the review of the comments received, and, as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.

Although I desire swift and decisive action, I remain committed to the rule of law and to the procedures the law prescribes. Doing this the right way will ensure that the resulting regulation is workable and effective and leaves no loopholes for criminals to exploit. I would ask that you keep me regularly apprised of your progress.

You are authorized and directed to publish this memorandum in the Federal Register.

So based on the simple "memorandum" of a sitting president we outlawed legal citizens from using a legal device, based on an emotional response to a terrible act by a deranged and sick man. Dangerous waters, especially since this isn't even on the gun grabbing side of the political spectrum. And we have wolfs in sheep's clothing in our own ranks that subscribed to President Trumps pushing to ban bumpstocks to "throw a bone to gun grabbers." I get that bumpstocks are novelty with little use (my opinion only), but they are a novelty that met all requirements of legality based on the NFA guidelines. At which point down the road of our 2A rights do we not put up with clear abuse of power, that doesn't meet constitutional scrutiny? Very dangerous precedent set by our "friend of the 2A" Donald J. Trump, and now with a good chance at a Biden/Harris administration we just gave them a playbook into the chipping away of our rights.

How hard will it be for a Biden/Harris administration with the help of Beto O'Rourke as Firearm Czar to put together executive orders, memorandums, and proclamations which according to the American Bar Association are by definition:


They are also catalogued by the National Archives as official documents produced by the federal government. Both executive orders and proclamations have the force of law, much like regulations issued by federal agencies, so they are codified under Title 3 of the Code of Federal Regulations, which is the formal collection of all of the rules and regulations issued by the executive branch and other federal agencies.
Executive orders are not legislation; they require no approval from Congress, and Congress cannot simply overturn them. Congress may pass legislation that might make it difficult, or even impossible, to carry out the order, such as removing funding. Only a sitting U.S. President may overturn an existing executive order by issuing another executive order to that effect. (Emphasis Added: bold)

Source: https://www.americanbar.org/groups/...ching-legal-docs/what-is-an-executive-order-/

 
...So based on the simple "memorandum" of a sitting president we outlawed legal citizens from using a legal device, ...

Not exactly.

  1. Trump directed the Attorney General to review the status or bump stocks.

  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. That 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.

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....
 
I promise I’m not posting this to be demeaning, sure it’s childish but it’s also quiet accurate and educational.
This particular Schoolhouse Rock video is neither demeaning nor childish, and you should never have to apologize for recommending it. You are correct, it is quite (d@mn that auto-corrupt feature) accurate and educational.
I have two professional colleagues, both attorneys, who have for years used it in seminars for technical professionals (all with masters' and doctorate degrees) to explain how the legal processes work to impact their scientific and engineering work. They began this practice years ago when public school systems were no longer teaching civics or government as core high school subjects. It is distressing how ignorant so many are these days about how our government works.
 
They are at my kids school, but we sacrifice to put them through private school for this and MANY other reasons. Public schools generally are not a proponent of teaching critical thinking, freedoms, love for ones country and pro-2A as well as other amendments. My kids schools administration and some teachers and staff conceal carry on campus and know there is subvert and overt evil in this world so they prepare with what they teach and what security they have respectively.

it is more critical than ever that the next generation understands the three branches of government, balances of power and limits of elected officials; for many reasons with one very important reason being the citizens 2A rights.


They taught my son about the branches, how a bill becomes a law, etc. He goes to public school.
 
Closed as the issue is spent and now off topic despite the hint
 
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