Eric Holder Speaks The "EO" Words

I don't like that guy. he probably should be in prison after the F&F deal.

Posted by Larry Vickers over on M4C.net:

word is the Obama administration had the ATF a couple months ago do a study to see the feasibility of making all semi auto assault rifles NFA items- meaning they would be handled in the same way as an SBR in terms of procuring one; it is assumed there would be an amnesty period for current owners to register the assault rifles they already have then any transfer down the line would be the same procedure as a suppressor or SBR

The gut feeling is that if Obama doesn't get from congress an assault rifle ban he likes he will do what Bill Clinton did with the Street Sweeper and use his executive powers to make semi auto AR's, AK's, FAL's, G3's, Galils, etc. NFA weapons

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I wouldn't put him past trying it, but the reason the street sweeper was able to be made a DD was because it has a bore over .5 in. All shotguns (except the .410) could be made DD's the same way, as they rely on a "sporting exemption" from ATF. I *THINK* the law would have to change to put title I rifles into NFA.

I also *think* the courts would grant an injunction and toss out such an EO.

The real battle is in Congress. There are several things the administration could do, and likely will, to limit imports and other things, but I don't think they could go as far as suggested above.

Entirely possible as long as a spineless Congress lets him get away with it. Considering the common use clause of Heller, I'd have to wonder if that EO would survive SCOTUS contact?

Ok...seriously, he doesn't have the Executive power to do that. I suppose he could try, but what IS and what ISN'T a Title II regulated Firearm was written into the text of the NFA in 1934.

When a few shotguns were made DD's back in the 80's, that WAS a simple administrative change because ALL shotguns would be DDs, except they are granted a general exemption -- which is revokable.

They CANNOT add semiautomatic rifles with barrels longer than 16" and an overall length of greater than 26" to the NFA list without rewriting the law.

The President's executive powers allow him to define how many laws will be enforced but cannot re-write a law. It just doesn't work that way.

I've met Larry V., and he's a nice guy. But he's adrift with this idea.

Politicians, of both flavor, don't want to be associated with truing to repeal the Second Amendment, HOWEVER the Second doesn't mention mag capacity. That IS something that could be done with the E.O. that is SO popular now

That IS something that could be done with the E.O. that is SO popular now

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Explain the process, please. How does he go about it?

Sam and Frank, you could make me and I'm sure others...sleep better if you could address specificly how this would differ from the Obama knife ban attempt.

I don't believe that there was even an EO involved in the attempted "redefining" of the 1959 switchblade act (which clearly defines a SB) to include ALL knives capable of being opened with one hand. The responsible agency just announced it's intentions with a 30 day comment period, and then their decision would carry the weight of law. The details of the ramification of that action are complicated, but it meant owners would be breaking State laws by carrying and a Felony if you crossed state lines. A defacto ban.

The only thing that prevented it from taking effect was separate legislation attached to an unrelated bill that reinforced the original definition in the 1959 Act.

So what is different between this and redefining the DD provisions in the NFA of '34 OR a similar import/export regulation like the knife situation?

Please don't take my post as argumentative. I am not an attorney, but then again if all lawyers agreed on the law... we wouldn't need judges. So I suppose all this is speculation and nobody but the actors on the stage really know what they will do or how courts may rule on those attempts.

Right?

I also *think* the courts would grant an injunction and toss out such an EO.

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I suppose that ultimately depends on how many Judges own 10/22's

TCB

"The legal reality is that there are limits to what a President can do with Executive Orders."

I understand your point but, and I mean no disrespect, I don't think that what you're saying matters. The President is extremely hostile to the private ownership of firearms and these latest murders afford him an opportunity to do what he's wanted to do for a long time: namely, to restrict gun sales, gun transfers and gun ownership.

You're assuming that Congress or the Courts will step in to stop the President if he issues an Executive Order restricting the manufacture, distribution, sale or possession of so-called Assault Weapons and standard capacity magazines. I don't believe they will. In my opinion the federal government is so dysfunctional and corrupt that neither the Congress nor the Courts will intervene. Just look at the members of Congress with "A" ratings from the NRA who suddenly decided that maybe gun control isn't such a bad idea after all. I hope I'm proven wrong but I don't think I will be. If the President tries to seize additional powers I don't believe the other two branches have the independence, the integrity or the will to stop him.

If the President tries to seize additional powers I don't believe the other two branches have the independence, the integrity or the will to stop him.

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So you think he'll just make a statement that "X" is now illegal (or that the NFA now say "ARs are Regulated Firearms") and that's that? It will be a completely blatant unlawful exercise of authority, but it will just stand because no one will stand up to him?

He might as well stand up and say, "You there, Jim Smith, give me $1,000." Or "Move over Justice Scalia, I'm going to sit here in your chair and judge a few cases myself." Or try to "fire" a member of the Senate. That's just not how our government works. It would effectively be dictatorship. Whether some Congress types like him or not, two branches will not allow a blatant grab of power by the third.

Hacker15e said:

did with the Street Sweeper

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People making the claim that something similar would be done for rifles don't understand the law in that area.


The law states that most firearms over .50 inch bore diameter are Destructive Devices. It gives exemptions. An exemption is shotguns or guns firing a shotshell that the 'Secretary' finds are suitable for sporting purposes.
In layman's terms that 'secretary' essentially means the ATF in modern times unless higher ups were to tell them otherwise.
The ATF has interpreted 'sporting purpose' to essentially mean hunting.

As a result they were able to say that street sweepers were not suitable for sporting purposes because they are all over .50 bore diameter.
Some years ago there was word they would do something similar for some other shotguns, notably Saiga shotguns. I seem to recall the ATF stating some years prior to the first drum magazine that if someone made a drum they would declare them Destructive Devices. Several companies made drums, and years went by with no more mention or change.
I seem to also recall some legislation good for a year passed by being tacked onto another bill passed by Congress that actually prevented them from declaring any shotgun previously legally imported the following X years a destructive device and hence no longer importable. So they may have actually done what they said they were going to, but it was at the time prevented even if they had wanted to. The individual that tacked that on may have prevented them becoming Destructive Devices, or the ATF may have decided not to use that power even after it expired to keep it from being revoked in the future during such a pro-gun time.


Centerfire rifles under .50 bore diameter give them no such discretion.
They cannot declare them destructive devices. That would take an act of congress to pass a new law.

Thank you to everyone for the thoughtful responses.
I hope all the optimists are correct.

I wasn't born this pessimistic.

Excellent thread.

I get your point Sam1911. It would be unprecedented. But the President is still a human and our government is still a flawed government of man. Rome was a Republic once too. Then it wasn't. Even FDR tried getting around Constitutional issues by attempting to pack the Supreme Court.

Is it likely that he'll try it? No. Is it likely it would stand if he did? Even less so.
But it's possible for both. Our government is already pretty far down the road towards despotism. Yeah this would be a huge and obvious(to some) step, and he might not be able to to pull it off. But I do not doubt his desire to try. And I do have some doubts that the American people or our representatives would really care. Given the other political policy events of the past decade, I honestly would not be surprised at anything. Between Obamacare and the PATRIOT act, I really have no faith left in the American electorate. People will go along with just about anything if it keeps McDonalds open and the Kardashians on TV. This would just be one more nail in the coffin.

The administrative changes would more likely come in regard to gun dealers. There is a real lack of auditing of dealers (and I'm not complaining about that). ATF has the power to do compliance inspections every 12 months. IN practice they generally don't. Most dealers see one every 5-6 years. It would be easy to reduce the number of dealers, increase the fees for licenses, and increase scrutiny of existing dealers without any legislation. This is likely what Holder meant.
Good-bye $20 transfers.

Is it likely that he'll try it? No. Is it likely it would stand if he did? Even less so.
But it's possible for both. Our government is already pretty far down the road towards despotism. Yeah this would be a huge and obvious(to some) step, and he might not be able to to pull it off. But I do not doubt his desire to try. And I do have some doubts that the American people or our representatives would really care.

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And, of course, you're right. Moments (and persons of note) have come in history which have changed the way we interpret the Constitution and the way the government does business. That has happened, and there's no reason to believe it will never happen again. I don't think this is one of those moments, but we can't be sure. Just hope we have the vigilance and determination to react against it if it does.

So you think he'll just make a statement that "X" is now illegal (or that the NFA now say "ARs are Regulated Firearms") and that's that? It will be a completely blatant unlawful exercise of authority, but it will just stand because no one will stand up to him?

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Possibly....

He's gotten away with Obamacare... upheld suprisingly by the SCOTUS.
F&F
Benghazi
Etc.

So far nobody has stopped him. On anything.

EO powers are broad I believe, and he could, for instance, shut off all imports. That would kill supply of some popular affordable stuff.

I think it'll be a combonation of laws like closing loopholes and magazine bans, along with EOs.

EO powers are broad I believe, and he could, for instance, shut off all imports. That would kill supply of some popular affordable stuff.

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There certainly ARE things he could do to imports. His power to make and enforce treaties and foreign affairs are a lot broader than his power to control domestic issues or laws.

Imports could be a target. Of course that would have little impact on things like AR-15s which are domestically produced and already would be illegal to import in normal pistol grip configuration.

Also do keep in mind prior EO like those that would lead to 922r may have been passed by the first Bush, but were actually passed into law by Congress not too long after.
So the legality of the EO may have been in question, but since the same restrictions were passed by Congress it didn't matter.
So just because it has been done before doesn't mean it would have legally withstood challenges, it didn't need to when Congress signed it into law and it ceased to be based upon an EO and was Congressionally passed law.

http://m.washingtonexaminer.com/eric-holder-executive-orders-on-gun-control/article/2516519



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I will add that it's a good thing that the recent shooting didn't involve that Saiga shotgun found loaded in the trunk or they would have probably been made DD's already.