I prefer dangerous freedom over peaceful slavery. Thomas Jefferson
Biden is now threatening to issue executive orders to enact gun reform, circumventing the need for a divided Congress to pass legislation. Can he do that? Probably! Is it legal? NO!
An executive order is not law. Article 1 Section 1 of the Constitution vests all legislative powers in Congress, therefore, if Congress has not established the policy or specifically given statutory power to the executive branch, Biden is out of luck. Under our system of government, the president’s authority to issue executive orders or engage in any other form of unilateral executive action must come from the Constitution or federal law. They cannot be used to give the presidency new powers.
The bottom line is that there is no Congressional authority enacted that would allow Biden or any other president to take unilateral action to make it unlawful for individuals to transfer or possess a rifle, handgun or other gun or a large capacity ammunition feeding device. Nor is there any Constitutional power under Article II that allows this. If the President wants a gun ban or ammunition ban he has to either convince Congress to give him the power to make new law or amend or eliminate the 2nd Amendment.
Presidents have the power to direct his/her executive branch as they see fit and executive orders are just one of the tools in the toolbox. However, the executive order can only give direction to federal agencies contained under the executive branch like the CDC, EPA or the Department of Transportation.
He cannot use executive orders to subject private citizens to specific rules and restrictions, or use them to pass a budget or abolish an Act of Congress. Nor can Biden do something that Congress has prohibited under law. For example, Public Law 112-55, enacted November 18, 2011 forbids the president from directing budget funds from one agency to another to make a list of gun owners for the purpose of rounding up guns. This resolution contained other restrictions as well as limiting the president’s budget control over firearm policy.
While the 2007 National Instant Criminal Background Check (NICS) Improvement Amendment Act, does requires federal agencies to transfer records to the Attorney General if a record shows that someone is prohibited from owning a firearm under federal law, it did not grant any new powers to the presidency. The only power Biden has under this law is to make certain that his agencies are complying.
Naturally some presidents have abused the use of executive orders in an attempt to go around Congress but, unlike laws, executive orders can be countermanded. Not only are they subject to repeal by the next president, Federal Courts may strike them down if they exceed the scope of the president’s authority under the Constitution.
For the moment put aside the fact that the Second Amendment protects the right of each person to own and possess firearms and the ammunition that goes with it. SCOTUS resolved that issue in Heller v. D.C. when they ruled that the Second Amendment to the United States Constitution protects an individual’s right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home, and that the District of Columbia’s handgun ban and requirement that lawfully owned rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock” violated this guarantee.
Every American should stay on guard for any unconstitutional power grab by the far-left. We have a Constitution that sets our policy for the long term and emotions of the day have to be subsumed to those principles.
The gun-control crusade today is like the Prohibition crusade 100 years ago. It is a shared zealotry that binds the self-righteous know-it-alls in a warm fellowship of those who see themselves as fighting on the side of the angels against the forces of evil. It is a lofty role that they are not about to give up for anything so mundane as facts – or even the lives of other people. Thomas Sowell
Source: Joe Biden Admits He Lacks ‘Executive Authority’ to Ban ‘Assault Weapons’ by Avar Hawkins, Breitbart; Presidential Gun Ban: Executive Power or Unconstitutional Power Grab, By Congressman Paul Gosar, D.D.S., (R-AZ); Executive Orders, The Heritage Foundation