AMENDING THE CONSTITUTION BY EXECUTIVE ORDER

In order to advance the discussion of the President’s proposed gun-control regulations, I would be willing to make the assumption that there might be something in those regulations – beyond the mental-health provisions (which are interesting and would not limit the manufacture, purchase, or use of guns) – that might actually prevent a future school shooting episode or reduce the chances of such an occurrence.  In other words, let’s just say that the President’s proposal would make good policy.  OK?

My response is, so what?  In a case like this, where a substantial portion of the Senate and a majority of the House believe the President’s proposal violates the Second Amendment, the threshold question, the gateway to any discussion of the President’s proposal, is, Does the proposal violate the U.S. Constitution?  The question is not whether the proposal is good policy, it is whether it is constitutional.  In the Supreme Court’s most-definitive ruling on the Second Amendment (District of Columbia v. Heller in 2008), the Court ruled that the right to bear arms is an individual right and is not limited by any contextual wording – such as being permissible only for the formation of a “militia.”  The right is broad but not unlimited, and Justice Scalia’s majority opinion articulates the standard:  “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The constitutionality of a law or regulation is not determined on the basis of whether it is good policy.  There are undoubtedly a great many new laws or regulations that a majority of the citizenry at any given time might consider to be good policy (such as a total ban on handguns, as proposed in certain cities) but that would violate the Constitution and might not inspire support by enough politicians and voters to be adopted as amendments to the Constitution.   Even if it could be reasonably assumed that a particular policy might at some point save lives, that would not automatically make that policy constitutional, it would merely present one argument on one side of the issue, a point whose weight should be considered.  That is exactly the way the Founding Fathers drew it up in the first place, and their wisdom has been verified time and again.  Yet the position of the White House and the Democrat leadership in Congress seems to be, not to worry, there is no constitutional issue because gun control will save lives and is, therefore, automatically constitutional.   Of course, if saving lives were their objective, the Democrats might as well have also banned planes, trains, and automobiles while they were at it.

If the Left wishes to debate the constitutionality of the President’s proposal, I say, let’s do it; if the Left wishes to argue that the wisdom of the proposal, as policy, is relevant to its constitutionality, they are free to do so.  And if the Left fails to win that argument but nevertheless feels so strongly about its proposal that it wants to amend the Constitution, fine:  let’s see whether they can muster the necessary votes at the congressional and state levels.

If the President’s proposal is unconstitutional, the President’s options are limited.  But if the President, as has become his custom, is going to barge ahead and simply implement the proposal by executive fiat and take his chances on the odds of a constitutional challenge not reaching the Supreme Court until the point is moot (or the composition of the Court has shifted in his favor), the real question is, just how much more of this rogue behavior is the country willing to support?

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