2nd Amendment Executive Orders

Matt Paul |

President Obama recently issued gun control executive orders, and the political heads from both sides are out spewing misinformation. Not concerned about the substance of the executive orders, this article puts into historical perspective the separation of powers issue, federalism issue, 2nd Amendment interpretation, and will conclude with my opinion concerning the legality of these executive orders. Unencumbered by the substance of these orders or motives behind them (that’s for the political talking heads), this purpose is to put into perspective the legal way, via the constitutional channels, of achieving gun control, whatever that might look like.

In creating a new government, the founders were aptly aware of the accumulating tendencies of the British constitution, and sought to develop a government where the executive, judicial, and legislative powers were exercised independent of another. In Federalist 48, Madison said,

“It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”

Congress creates laws, the executive executes laws, and the court adjudicates laws. Simple enough….well sort of. It gets fuzzy because it is not that simple. The executive branch was debated until the very end of the convention. What would become the most powerful position on the planet took the founders the longest to create. Why? Well, the president was never meant to be an administrator. He was never meant to just “execute the laws.” No one knew how a president fit into a free government not to mention the powers, if any, he should have.

One can get a real sense of separation of powers reading the Pacificus-Helvidius (Hamilton and Madison) debates. This was one of those pivotal moments in American history, and in my opinion, one of the most underappreciates times. These debates helped solidify the role of the president in this new experiment in a free government. The debates centered on the first, as law, executive order: Proclamation of Neutrality of 1793. In short, it was a statement issued by President Washington, independent of Congress, on America’s neutral stance in the war between England and France. Washington declared a state of peace, and forbade any American to get involved! Wow. This might sound funny in 2016 but it was serious then and its ghost is still with us today.

To the founders, this was a serious issue. This was a separation of powers issue. No, it was more fundamental. What powers did the president have? What was the role of the president in a republican government? The answer hinged on the interpretations of Article 1 Section 1 and Article 2 Section 1 of the Constitution. The former states “all legislative powers herein granted shall be vested in a Congress,” and the latter states “The executive power shall be vested in a President.” The difference in these clauses opens a door to a much more broad discussion, a rabbit hole the probably shadows over that in Alice and Wonderland. For this article, it will suffice to understand that basic argument….and I mean the most basic argument.

For Madison, the act of declaring peace is that of declaring war, and only Congress can declare war.Helvidius says,

“A declaration that there shall be war, is not an execution of laws…it is not an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed…In a like manner a conclusion of peace annuls all the laws peculiar to a state of war.”

Being at peace or war fundamentally changes the character of a nation, a decision only Congress is rightfully authorized to make. For Washington to declare peace is to assume too much of the legislative power, thereby violating separation of powers. Madison, in this debate, saw the President as purely the executor of law. To agree with Madison is to give an extremely strict view of the presidency.

Hamilton on the other hand argued that Article 2 Section 1 presumedimplied powers, especially in regards to foreign policy. That comes right from Locke’s Second Treatiseon the federative power.Pacificus said, “the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are in the instrument.” In laymen’ terms, the president is restricted only by what is specifically said in the Constitution. Contrary to Madison, this view of the president is very broad.

That’s barely the surface of the debate, and only when read in full can justice be done. GO READ IT! This debate had major ramifications on presidential power, and spoiler alert, Hamilton won. At that moment of time, the president gained serious leverage that is still had today, obviously.

So what of federalism and the 2nd amendment? Surely Obama overstepped here! Not so fast. Today, Americans put so much into the Bill of Rights, like sacrilegiously. I know I do! Madison however, pushed for the Bill of Rights to shut up the anti-federalists, and that’s it. Ever since I thought I knew anything, the Bill of Rights was a document protecting every America from all government. Boy I wish it was that simple!

First, the 2nd amendment. It says “a well regulated Militia, being necessary to security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The people were so scared of a monarchy and a strong central government that expressed rights needed to be absolutely secured. Reading the first Congress, one can see the entire debate on the 2nd amendment centered on two things: religious exceptions to bear arms, and how central governments and standing armies were the antithesis to liberty. Modern day Americans can never underestimate what the militia represented. Take a look at the footnoted source to get an idea!

The Bill of Rights has definitive terms. For example, “Congress shall pass no law,” “the right of the people to bear arms shall not be infringed,” “no soldier shall,” “secure in persons, houses, papers, and effects…shall not be violated.” These are all direct prohibitions on the federal government, but since the beginning of the republic there were exceptions, the Sedition Act being the most famous. There was no time in history where a right was protected absolutely. Unfortunately, string of Supreme Court cases goes back 227 years. Just take my word for it.

Finally, there’s federalism. Madison said in Federalist 48,

“In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Totally unique to America is the idea of two sovereigns: the states and federal government. The federal government was created to take care of “national” issues. It was given limited powers and limitedobjectives; the states controlled the rest.Ensuring the government remained confined and limited was incredibly important to early Americans. The states watched over their power with such a jealous eye that it drove America to a Civil War. It’s difficult for outsiders and those not schooled in early American thought to understand just how important federalism is…was to America and our governmental structure. It’s a cornerstone.

Let’s connect federalism and the 2nd amendment. Aside from some exceptions, federal laws concerning the Bill of Rights were few and far between because the federal government had no authority, really. The federal government had limited powers clearly defined under Article 1. The line separating the states and federal government was real and fought over…a lot.The states had (still do) their own constitutions and many had the same rights as the Bill of Rights, but the states were the federal government of today. The states could have, and did quite frequently, regulate rights. The states have had gun control since the beginning of America. I find this to be unfortunate, but no right has ever been absolute.

The National Firearms Act of 1394 helps drive this point. This was the first federal gun control legislation. It took 145 years until the federal government legislated on guns, and it’s because of federalism. One can even speculate if the federal government would have legislated then if not for increased crime (I’ll go ahead and contribute that to prohibition). The important thing to remember is although there were federal exceptions legislating the Bill of Rights, the federal government had no power in that sphere because of federalism. It was a state prerogative.

What can we take away from this piece? Executive orders have been around since the very beginning, and it stems from the implied powers under Article 2 Section 1 as seen by the Pacificus-Helvidius debates. One can’t argue against Obama’s executive orders from this perspective. Separation of powers is no good either as a direct result of the executive’s implied powers. The president’s power was never fully developed because they can’t be. The president is responsible for the security of the entire nation. It’s not like legislating nor like adjudicating. The president has much prerogative. The founders were in a tough spot. They were so scared of a monarch/tyrant that any power was extrapolated to the extreme, but yet, the president needed power and it had to be strong enough to be independent of the legislature. It couldn’t put him in a box, but yet, he had to be in a box.

Historically speaking, one can argued against these executive orders via federalism, but that’s a lost cause. The 14th amendment changed all of that. Give me a fresh pack of cigarettes, a few beers, Metallica, and about a month and I’ll write about the 14th amendment. The 14th amendment (and the subsequent 17th) destroyed federalism. The line doesn’t exist.

These executive orders are technically legal. To preserve liberty though, one must look to Congress. All Congress has to do is void Obama’s executive orders and poof! But there’s a bigger issue here. These executive orders (all executive orders) are a direct challenge to Congress’ legislating authority. Congress has a Constitutional duty to preserve the integrity of its branch. Congress has to shed “party,” and defend its institution as the law making branch. Politicians have to stop thinking of themselves in terms of their party. If you’re too lazy to read Federalist 10 I’ll write about it. It’s important, and like very relevant. I personally think all federal gun laws are illegal, but to the extent they exist they need to come from Congress. Allowing any president the power make the law s/he is meant to execute is tyranny. President Obama recently issued gun control executive orders, and the political heads from both sides are out spewing misinformation. Not concerned about the substance of the executive orders, this article puts into historical perspective the separation of powers issue, federalism issue, 2nd Amendment interpretation, and will conclude with my opinion concerning the legality of these executive orders. Unencumbered by the substance of these orders or motives behind them (that’s for the political talking heads), this purpose is to put into perspective the legal way, via the constitutional channels, of achieving gun control, whatever that might look like.

In creating a new government, the founders were aptly aware of the accumulating tendencies of the British constitution, and sought to develop a government where the executive, judicial, and legislative powers were exercised independent of another. In Federalist 48, Madison said,

“It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or ly, an overruling influence over the others, in the administration of their powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”

Congress creates laws, the executive executes laws, and the court adjudicates laws. Simple enough….well sort of. It gets fuzzy because it is not that simple. The executive branch was debated until the very end of the convention. What would become the most powerful position on the planet took the founders the longest to create. Why? Well, the president was never meant to be an administrator. He was never meant to just “execute the laws.” No one knew how a president fit into a free government not to mention the powers, if any, he should have.

One can get a real sense of separation of powers reading the Pacificus-Helvidius (Hamilton and Madison) debates. This was one of those pivotal moments in American history, and in my opinion, one of the most underappreciates times. These debates helped solidify the role of the president in this new experiment in a free government. The debates centered on the first, as law, executive order: Proclamation of Neutrality of 1793. In short, it was a statement issued by President Washington, independent of Congress, on America’s neutral stance in the war between England and France. Washington declared a state of peace, and forbade any American to get involved! Wow. This might sound funny in 2016 but it was serious then and its ghost is still with us today.

To the founders, this was a serious issue. This was a separation of powers issue. No, it was more fundamental. What powers did the president have? What was the role of the president in a republican government? The answer hinged on the interpretations of Article 1 Section 1 and Article 2 Section 1 of the Constitution. The former states “all legislative powers herein granted shall be vested in a Congress,” and the latter states “The executive power shall be vested in a President.” The difference in these clauses opens a door to a much more broad discussion, a rabbit hole the probably shadows over that in Alice and Wonderland. For this article, it will suffice to understand that basic argument….and I mean the most basic argument.

For Madison, the act of declaring peace is that of declaring war, and only Congress can declare war.Helvidius says,

“A declaration that there shall be war, is not an execution of laws…it is not an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed…In a like manner a conclusion of peace annuls all the laws peculiar to a state of war.”

Being at peace or war fundamentally changes the character of a nation, a decision only Congress is rightfully authorized to make. For Washington to declare peace is to assume too much of the legislative power, thereby violating separation of powers. Madison, in this debate, saw the President as purely the executor of law. To agree with Madison is to give an extremely strict view of the presidency.

Hamilton on the other hand argued that Article 2 Section 1 presumedimplied powers, especially in regards to foreign policy. That comes right from Locke’s Second Treatiseon the federative power.Pacificus said, “the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are in the instrument.” In laymen’ terms, the president is restricted only by what is specifically said in the Constitution. Contrary to Madison, this view of the president is very broad.

That’s barely the surface of the debate, and only when read in full can justice be done. GO READ IT! This debate had major ramifications on presidential power, and spoiler alert, Hamilton won. At that moment of time, the president gained serious leverage that is still had today, obviously.

So what of federalism and the 2nd amendment? Surely Obama overstepped here! Not so fast. Today, Americans put so much into the Bill of Rights, like sacrilegiously. I know I do! Madison however, pushed for the Bill of Rights to shut up the anti-federalists, and that’s it. Ever since I thought I knew anything, the Bill of Rights was a document protecting every America from all government. Boy I wish it was that simple!

First, the 2nd amendment. It says “a well regulated Militia, being necessary to security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The people were so scared of a monarchy and a strong central government that expressed rights needed to be absolutely secured. Reading the first Congress, one can see the entire debate on the 2nd amendment centered on two things: religious exceptions to bear arms, and how central governments and standing armies were the antithesis to liberty. Modern day Americans can never underestimate what the militia represented. Take a look at the footnoted source to get an idea!

The Bill of Rights has definitive terms. For example, “Congress shall pass no law,” “the right of the people to bear arms shall not be infringed,” “no soldier shall,” “secure in persons, houses, papers, and effects…shall not be violated.” These are all direct prohibitions on the federal government, but since the beginning of the republic there were exceptions, the Sedition Act being the most famous. There was no time in history where a right was protected absolutely. Unfortunately, string of Supreme Court cases goes back 227 years. Just take my word for it.

Finally, there’s federalism. Madison said in Federalist 48,

“In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Totally unique to America is the idea of two sovereigns: the states and federal government. The federal government was created to take care of “national” issues. It was given limited powers and limitedobjectives; the states controlled the rest.Ensuring the government remained confined and limited was incredibly important to early Americans. The states watched over their power with such a jealous eye that it drove America to a Civil War. It’s difficult for outsiders and those not schooled in early American thought to understand just how important federalism is…was to America and our governmental structure. It’s a cornerstone.

Let’s connect federalism and the 2nd amendment. Aside from some exceptions, federal laws concerning the Bill of Rights were few and far between because the federal government had no authority, really. The federal government had limited powers clearly defined under Article 1. The line separating the states and federal government was real and fought over…a lot.The states had (still do) their own constitutions and many had the same rights as the Bill of Rights, but the states were the federal government of today. The states could have, and did quite frequently, regulate rights. The states have had gun control since the beginning of America. I find this to be unfortunate, but no right has ever been absolute.

The National Firearms Act of 1394 helps drive this point. This was the first federal gun control legislation. It took 145 years until the federal government legislated on guns, and it’s because of federalism. One can even speculate if the federal government would have legislated then if not for increased crime (I’ll go ahead and contribute that to prohibition). The important thing to remember is although there were federal exceptions legislating the Bill of Rights, the federal government had no power in that sphere because of federalism. It was a state prerogative.

What can we take away from this piece? Executive orders have been around since the very beginning, and it stems from the implied powers under Article 2 Section 1 as seen by the Pacificus-Helvidius debates. One can’t argue against Obama’s executive orders from this perspective. Separation of powers is no good either as a direct result of the executive’s implied powers. The president’s power was never fully developed because they can’t be. The president is responsible for the security of the entire nation. It’s not like legislating nor like adjudicating. The president has much prerogative. The founders were in a tough spot. They were so scared of a monarch/tyrant that any power was extrapolated to the extreme, but yet, the president needed power and it had to be strong enough to be independent of the legislature. It couldn’t put him in a box, but yet, he had to be in a box.

Historically speaking, one can argued against these executive orders via federalism, but that’s a lost cause. The 14th amendment changed all of that. Give me a fresh pack of cigarettes, a few beers, Metallica, and about a month and I’ll write about the 14th amendment. The 14th amendment (and the subsequent 17th) destroyed federalism. The line doesn’t exist.

These executive orders are technically legal. To preserve liberty though, one must look to Congress. All Congress has to do is void Obama’s executive orders and poof! But there’s a bigger issue here. These executive orders (all executive orders) are a direct challenge to Congress’ legislating authority. Congress has a Constitutional duty to preserve the integrity of its branch. Congress has to shed “party,” and defend its institution as the law making branch. Politicians have to stop thinking of themselves in terms of their party. If you’re too lazy to read Federalist 10 I’ll write about it. It’s important, and like very relevant. I personally think all federal gun laws are illegal, but to the extent they exist they need to come from Congress. Allowing any president the power make the law s/he is meant to execute is tyranny.

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