More Court Challenges to Obama’s Gun Actions Expected But Most Legal Experts Believe Obama Will Prevail

Last week, Attorney General Loretta Lynch defended President Obama’s executive actions on guns: “As the list of tragedies involving firearms has grown, so has the American people’s belief that we must do more to stem the tide of gun violence,” Lynch said.

Among other things, the executive actions taken will:

  • Expand the number of firearms dealers who must conduct background checks.
  • Establish new requirements for federally licensed gun dealers.
  • List “the people who are not allowed to have firearms, such as felons, domestic abusers and others,” according to Lynch.
  • Co-opt a ban on gun ownership for some Social Security beneficiaries.
  • Necessitate the hiring of “more than 230 additional examiners and other staff to help process…background checks.”

During a Senate Appropriations subcommittee hearing, chaired by Sen. Richard Shelby (R-AL), Lynch testified that:

“The Gun Control Act lists the people who are not allowed to have firearms, such as felons, domestic abusers and others. Congress has also required that background checks be conducted as part of sales made by federally licensed firearms dealers to make sure guns stay out of the wrong hands. … The actions announced by the president, which focus on background checks and keeping guns out of the wrong hands, are fully consistent with the laws passed by Congress.”

Though Lynch has insisted the executive actions are “consistent with the Constitution” and “laws passed by Congress,” Republicans argue the president is overreaching his executive authority.  Senator Shelby has been one of the most vocal critics of the president’s gun actions. “It’s clear to me that the American people are fearful that President Obama is eager to strip them of their Second Amendment rights,” he said. He went on in addressing Lynch at the hearing: “Let me be clear: The Second Amendment is not a suggestion.”

In his opening statement at the hearing, Alabama Attorney General Luther Strange described President Obama’s actions on gun control as an “unwarranted assault on the Second Amendment” and one which would prove to be ineffective. “Further limiting the ability of responsible citizens to buy guns won’t keep criminals from getting one,” he argued. “The law enforcement officers in my state… believe these actions will not have a meaningful impact.” Strange added that fewer than one percent of illegal gun purchases take place at gun shows, and of those, fewer are involved in violent crimes.

Implementation of President Obama’s gun actions won’t be cheap. Lynch announced, during her testimony, that it will cost  $80 million. The administration will begin angling for the money in Obama’s 2017 budget request which is due next month. According to Shelby, however, Lynch is already meeting some resistance. “This subcommittee will have no part in undermining the Constitution and the rights that it protects,” Shelby said.

According to Breitbart:

“Lynch tried to sell the gun-control plan to the subcommittee by claiming that a ‘glitch’ in the background-check system allowed Dylann Roof to buy the gun he used to kill nine people in June 2015 at the Emanuel African Methodist Episcopal Church, in Charleston, S.C.

But this claim runs counter to a statement from FBI Director James Comey. Roof obtained his gun, not because of a problem with background check system, but because of a clerical error made by one of the FBI reviewers who was carrying out Roof’s background check, Comey said.”

But, gun groups are fighting back. The National Rifle Association (NRA) and various other gun rights groups have begun a major public relations blitz to counter President Obama’s actions. This offensive includes videos, media ads and email alerts. Some of the groups participating include, in addition to the NRA, the Gun Owners of America and the National Shooting Sports Foundation. According to The Hill, “The gun lobby hopes to rebut Obama, who cast the actions as reasonable steps to prevent senseless gun violence. They also hope to make the efforts politically unpalatable for any candidate that may back them in the 2016 election.”

The NRA recently released a new video which suggests the Obama administration may implement an “Australian-style” gun confiscation that would force law-abiding Americans to relinquish their firearms.

Some of the presidential candidates have chimed in. Sen. Ted Cruz (R-TX), for instance has called Obama “the most anti-gun president” in history, while Donald Trump promised he would “unsign” the actions “so fast.”

Democrats, on the other hand, believel they have an edge in 2016 because of the series of mass shootings during Obama’s presidency. Hillary Clinton has vowed to go even further than the Obama administration if elected.

Additionally, President Obama is now facing the first legal challenge over his executive action on guns. On the same day the Supreme Court agreed to hear the challenge to Obama’s action on immigration, Freedom Watch announced its lawsuit against the gun orders. Freedom Watch has accused Obama of sidestepping Congress in inventing new gun laws. “The president states that he is doing so purely because he does not like the legislative decisions of the Congress,” wrote Larry Klayman, the founder of Freedom Watch.

Klayman went further, saying that, “these actions are unconstitutional abuses of the president’s and executive branch’s role in our nation’s constitutional architecture and exceed the powers of the president as set forth in the U.S. Constitution.”

It is believed that this lawsuit is just the first in what is expected to be a series of legal challenges over Obama’s gun actions. Many legal experts, however,  predict the executive actions will remain in tact.

This includes some Obama critics, who doubt the courts will block or overturn any of the president’s gun actions. “I don’t see anything lawless here,” George Mason University law professor and author David Bernstein, opined. Bernstein, a self-described “vocal critic of the Obama administration’s dubious assertions of executive authority,”stated his views in a Washington Post article.

Another Obama critic, Josh Blackman, an associate professor and constitutional law expert at South Texas College of Law, arrived at a similar conclusion in an item-by-item analysis on his blog.

Overall, the consensus among experts is that, “the iffiest of the executive actions isn’t the one that’s getting the most pushback – the expansion of background checks for occasional gun dealers. It’s an order that would prohibit people with certain mental illnesses – specifically those that render them unable to manage their own finances – from owning guns.” Blackman pointed out that the Social Security Administration will go through the rulemaking process in this case because it includes certain due process rights for those denied the right.

However, Andrew P. Napolitano, a FOX News analyst and former Superior Court judge in New Jersey, has expressed a dissenting viewpoint, arguing that the president explicitly ignores the wishes of Congress by requiring background checks for buyers of guns sold by occasional dealers.

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