Could Obama Take Actions That Would Result In The De Facto Repeal Of The Second Amendment?

The Second Amendment has nothing to do with 'sportsmen.'

By Dave Kopel

President Barack Obama thought the microphones were off, but they weren’t. He spoke quietly to Russian President Dmitry Medvedev, asking him to convey a message to Russia’s real ruler, Vladimir Putin: “On all these issues, but particularly missile defense, this, this can be solved but it’s important for him to give me space.”

Medvedev replied, “Yeah, I understand. I understand your message about space. Space for you …”

Obama continued, “This is my last election. After my election I have more flexibility.”

So we know that Obama wants to make concessions on American missile defense, and that he knows those concessions would be unacceptable to the American people—yet he plans to make them anyway once he is past the Nov. 6 election. What else does he have planned once his re-election gives him the “flexibility” that he expects? Nobody outside of Obama’s tightly controlled inner circle knows for certain.

Is it possible that Obama is as sincerely anti-gun as his long pre-presidential record indicates? That he was telling the truth in 1996 when he said he favored banning handguns, and in 2007 and 2008 when he said that he thought the Washington, D.C., handgun ban was constitutional? That he meant what he said in 1999 when he proposed shutting down every gun store in the inhabited portion of the United States—via a federal law that would ban all gun stores within five miles of a school or park?

He has never retracted his 1998 answer to a questionnaire in which he said he wants to ban the “sale or transfer of all forms of semi-automatic weapons.” Nor has he retracted his proposal for a 500 percent increase in the federal tax on firearms and ammunition. Obama’s 2012 Democratic Party platform calls for a ban on so-called “assault weapons.” As an Illinois state senator, Obama voted for an “assault weapons” ban so extreme that it would even have outlawed shotguns of 28 gauge and larger (Senate Bill 1195 of 2003).

So let’s consider a worst-case scenario in which Obama is re-elected, and he decides to use his new “flexibility” on the Second Amendment. Whether he will actually do so is, of course, unknown right now.

What we do know for certain is that if he is re-elected, the decision will be absolutely up to him. …

Gun owners were feeling pretty good on election night. After all, the results were mixed. True, Obama’s narrow wins in some of the swing states, such as Colorado, Michigan and Nevada, had given him a bit more than 270 electoral votes, barely enough to win re-election. But pro-gun candidates had won many of the U.S. House and Senate races, increasing the pro-gun majority in both chambers. The conventional wisdom among gun owners was that no matter what Obama personally thought about guns, the House and Senate were secure firewalls against any threats to the Second Amendment.

Two weeks later, a pair of U.S. federal agents in Ciudad Juarez, Mexico, were murdered. The killers were never apprehended, but the extensive ballistic evidence at the crime scene showed that the guns used in the murders were a .223 rifle and 9 mm pistol, both semi-automatic firearms. (Many years later, it would be revealed that those particular guns had been trafficked into Mexico as part of “Operation Fast and Furious,” but this fact was not known at the time.) President Obama requested airtime from all the major TV networks to deliver a major policy address the next evening.

“My fellow Americans,” he began, “I have always believed that the Second Amendment protects the right of individuals to bear arms. I am well aware that I could not have won the 2008 and 2012 elections without the millions of Americans who believed my promise: ‘As President, I will uphold the constitutional rights of law-abiding gun owners, hunters and sportsmen.’

“I intend to keep that promise, just as I have kept every promise I made during both of those campaigns.

“You voted for me this year because I told you ‘We Can’t Wait.’ Throughout my presidency, when Congress has failed to act because it is in the grip of special interests such as the National Rifle Association, I have used my presidential powers to act unilaterally. Tonight, I am doing so again.

“As I speak, the Bureau of Alcohol, Tobacco, Firearms and Explosives is issuing emergency regulations prohibiting the import of all handguns and ‘assault weapons.’ Current federal laws give me the power to ban the import of firearms that are not suitable for sport, and these weapons are suitable for nothing except murder.

“As for the domestic manufacture and sale of such weapons, manufacturers and consumers will have to go through the same procedures currently applicable to machine guns and silencers. Pursuant to the National Firearms Act of 1934, the NFA, these weapons are being classified as ‘destructive devices.’ Legally speaking, that means that they are ‘similar devices’ to weapons such as grenades, rockets, missiles and bombs. As I have long said, ‘assault weapons’ ‘belong on the battlefield of war, not on the streets of our cities.’

“I have repeatedly told you that I support the Supreme Court’s decision in District of Columbia v. Heller, which upheld the Second Amendment right to own handguns. My orders fully comply with Heller. In that case, Mr. Heller sought to own a .22-cal. revolver, and the Supreme Court ruled in his favor. Thus, the ATF’s new regulations will not apply to .22-cal. revolvers.

“You should know that I am not banning any gun except for certain imports. All I am doing is requiring that the most dangerous types of firearms be subject to appropriate regulations.

“In the coming weeks, my administration will take additional steps to free Americans from the scourge of gun violence, while we fully protect the Second Amendment rights of all Americans.”

That night and the next day, millions of Americans rushed to gun stores. Consumers were surprised at how many things they could not purchase.

The new regulations defined “destructive devices” to include “dangerous parts for handguns and ‘assault weapons.’” Among the covered items were detachable magazines holding more than five rounds, as well as bipods, flash suppressors, bayonet lugs, folding or collapsible stocks, hand guards and many other accessories.

As for so-called “assault weapons” themselves, the new regulatory definition was very broad, including all semi-auto firearms. It also included all .50-cal. guns.

Also classified as “destructive devices” were all muzzleloaders over .50-cal.and all 12-ga. shotguns. The statutory definition of “destructive device” already includes firearms whose barrel diameter is more than a half-inch or larger, except for a shotgun that the federal government says “is generally recognized as particularly suitable for sporting purposes.” The Obama ATF had determined that muzzleloaders and 12-ga. shotguns are never “particularly suitable for sporting purposes,” in light of their potential lethality.

Millions of people filled out the paperwork to begin their applications to purchase a handgun, a semi-auto, a 12-ga. shotgun or a muzzleloader. Those who eventually completed the process, which required a $200 transfer tax, being fingerprinted by local police and an authorization form signed by the police chief or sheriff where the person resides, received a letter from ATF that the waiting time for ATF to process the application would probably be several years.

As the letter explained, even before the president’s speech, it took ATF several months to process applications for traditional NFA items such as short-barreled rifles and suppressors. Given the mass of new NFA applications for handguns, “assault weapons” and “parts,” the backlog would take years to clear. After all, President Obama, in his commitment to balancing the budget, had decided that ATF should not be allowed to hire extra personnel to process all the new applications.

The letter further explained that persons who were currently in possession of “destructive devices” (handguns, semi-autos, 12-ga. shotguns and muzzleloaders) were also required to follow the same registration procedure (fingerprints, plus local police permission) as were persons seeking to acquire a destructive device. Following the precedent from President Clinton’s 1994 reclassification of three shotgun models as destructive devices, ATF would waive the $200 tax for current owners. Moreover, rather than requiring immediate registration, ATF would give current owners up to two years before the registration application would be necessary.

Finally, the letter reminded the public of a long-standing regulation: the owner of a destructive device may not transport it, even temporarily, outside the state where it is registered, unless the owner has received prior permission from ATF.

The morning after the Obama speech, the National Rifle Association filed lawsuits in several federal district courts. Lawsuits were also filed by dozens of individual gun owners and gun stores. In most of these cases, the attorneys for the plaintiffs had no experience in gun-rights litigation, or the plaintiffs had no attorney at all and were just representing themselves.

Many of the individual plaintiffs enjoyed the sudden notoriety of being interviewed for local television news programs. But for litigation purposes, the individual suits were a catastrophe. Eric Holder’s Department of Justice assigned its best attorneys to the gun cases. Holder’s attorneys made successful motions to consolidate the NRA cases with the individual cases; the numerous procedural errors of the inept attorneys in the individual cases provided many reasons for the judges to slow down all the cases. While the legal arguments against the President’s actions were very strong, it would be many months before any court heard any argument on the merits.

Congress, however, had sprung into action quickly. There were plenty of hearings on the Obama gun bans. When the new Congress assembled in January, it took only a few weeks to pass corrective legislation to end the Obama gun regulations. Inspired by the strong public opposition to the bans, Congress also passed a variety of additional pro-gun bills, such as national Right-to-Carry and ATF reform. As it turned out, assembling the 60 votes in the Senate to beat a filibuster led by Sens. Charles Schumer and Dianne Feinstein was relatively easy.

But President Obama vetoed all the congressional bills. When the time came for a veto override, pro-gunners fell several votes short of the necessary two-thirds in each house. Legislators who voted to sustain the president’s veto were rewarded with large pork barrel projects, and they were promised that if they lost in the 2014 elections, they would be appointed to high-paying federal jobs.

Meanwhile, at the United Nations, Ambassador Susan Rice announced that the United States position had “evolved,” and the United States was ready to sign a very strong version of the proposed Arms Trade Treaty.

The United Nations never moves quickly, so it took several months before the Arms Trade Treaty was ready. But when it was, the international gun prohibition lobbies exulted that the new treaty provided everything they had asked for, including the mandatory registration of all firearms and ammunition, prohibition of all handguns and semi-autos, licensing of all gun ownership based on whether an individual could prove a “need” for a gun, and a new U.N. agency to impose embargos on the firearms trade.

Canadian Prime Minister Stephen Harper denounced the Arms Trade Treaty as “an affront to Canada’s traditions of outdoorsmanship.” Secretary of State John Kerry, though, was given the honor of being the first government representative to sign the treaty, which he praised as “an excellent balance between the sporting privileges of the Second Amendment and common-sense protection of public safety.”

Within a few weeks, the new U.N. Commission on Small Arms had announced arms embargoes against Israel and the United States. The Israel embargo was for having, according to the U.N., “the worst human rights record on the planet.” For the U.S., the basis for the embargo was the 2006 decision by the U.N. Commission on Human Rights that state and federal laws that allow police or crime victims to use firearms against criminals who attempt rape or robbery, but who are not attempting to murder, is a violation of the criminals’ right to life, as guaranteed by international law.

European governments ordered a halt of all firearm exports to the United States. The governments were quite grateful to the Obama administration for having recently contributed $2 trillion of U.S. taxpayer money to the International Monetary Fund in order to bail out European banks.

As the lawsuits slogged through the lower federal courts, the manufacturers of handguns and semi-autos struggled to stay in business. When consumers realized that they would have to wait years to take possession of a gun and pay a $200 tax, most of them chose to buy other firearms instead. Besides that, many big-city police chiefs announced that under no circumstances would they sign the permission forms that were required for persons to acquire or retain destructive devices. The smaller manufacturers of handguns and semi-auto long guns went out of business first.

November and December, and early 2013, were fantastic for the manufacturers of the long guns that had not been declared “destructive devices.” The factories were running three shifts, 24 hours a day, and guns were selling as fast as they could be produced. There was no more discounting, and retailers did a thriving business selling those rifles and shotguns at full list price, which had increased substantially.

However, in March 2013, the government of Mexico filed a lawsuit in a Mexican court against every U.S. firearm and ammunition manufacturer. The Mexican suit claimed that American manufacturers, by selling guns under the “lax” U.S. system of firearms regulations, had “recklessly” created a risk of gun crime in Mexico. The Mexican trial court agreed and issued a $4 billion judgment against the American companies collectively, which was quickly affirmed by the Mexican Supreme Court.

Leaked diplomatic cables later revealed that the Obama administration had encouraged the suit, and had quietly provided legal expertise to the Mexican government.

The American companies resisted Mexican efforts to collect on the judgment. But the Obama administration urged U.S. courts to cooperate with the Mexican collection efforts, out of respect of U.S. international obligations. Some U.S. companies disappeared overnight, with federal marshals enforcing court orders to seize the companies’ U.S. bank accounts and manufacturing facilities.

As U.S. firearm manufacturing contracted, so did the number of retailers. Back during the Clinton administration, ATF had gotten rid of tens of thousands of FFL retail licensees by finding any available pretext to deny a license renewal application. The Obama administration did the same, but even more aggressively, and the number of gun stores plummeted.

Obama appointees now dominated the Consumer Product Safety Commission (CPSC). They obeyed the federal statute that forbade the CPSC from acting against firearms or firearms ammunition. Instead, the CPSC determined that the availability of “high-power” airguns “presents an unreasonable risk of injury,” especially to children. So the CPSC prohibited the sale of all air guns with a velocity of more than 400 feet per second. President Obama praised the decision, noting that “the beloved Daisy Red Ryder BB gun” would not be affected.

The Environmental Protection Agency, using its powers under the Toxic Substances Control Act, imposed a complete ban on the use of lead in ammunition. The agency, which had rejected calls for a lead ban during Obama’s first term, now announced that it agreed with environmental groups who had argued that even though Congress had forbidden the agency to ban ammunition, merely banning a “toxic component” of ammunition was allowed.

By the time the Obama gun-ban cases finally made their way to the U.S. Supreme Court, President Obama, in his second term, had already appointed four new justices, due to retirements of older justices for health reasons. The Court now consisted of six Obama justices, along with Justices Stephen Breyer, Samuel Alito and John Roberts.

Most legal analysts predicted that Heller would be overruled. Thus, there was widespread surprise when Justice Sotomayor’s opinion for the Court began, “We reaffirm the core holding of Heller, of the individual right to own a .22-cal. revolver solely in the home.”

But Justice Sonia Sotomayor’s seven-justice majority upheld all of the Obama regulations. The majority explained that it was persuaded by the arguments developed by U.S. State Department Legal Advisor Harold Koh that all of the Bill of Rights, including the Second Amendment, must be interpreted in conformance with international legal norms.

The next week, the same 7-2 majority ruled that the 2005 Protection of Lawful Commerce in Arms Act was unconstitutional. Soon, hundreds of lawsuits were filed against the remaining firearm and ammunition manufacturers, and against almost all the remaining gun stores. Funding for the suits was provided by Michael Bloomberg’s Mayors Against Illegal Guns.

As one of Bloomberg’s attorneys explained, “There are hundreds of cases, and not one of the defendants can afford to fight them all. Even if they could, they have to win everywhere, and we only have to win once.”

With the legal issues of new ATF regulations now settled, ATF began a major push to enforce the registration requirement for persons who had acquired destructive devices before the reclassification. Following a practice first used in the Clinton administration, ATF agents visited all firearms dealers and examined all their Form 4473 registration records of firearms sales. ATF also studied its enormous inventory of the 4473 forms, which dealers who go out of business must send to ATF.

If a Form 4473 showed that an individual had bought a handgun (other than a .22-cal. revolver), or a semi-auto, or a 12-ga. shotgun, ATF would check to see if that “destructive device” had been properly registered in ATF’s National Firearm Registration and Transfer Record (NFRTR), or if there was a pending application. If so, everything was fine. (Before the new Obama regulations, there had been no dealer records required for muzzleloader sales, so ATF chose to ignore them—for the time being.)

If the 4473 showed that a person had bought a destructive device, but it was not registered in the NFRTR, then ATF agents would visit the person’s home.

Most of the ATF home visits were carried out by polite and efficient agents. However, if the registration records indicated special danger (e.g., a person with an arsenal of five or more unregistered destructive devices), ATF would sometimes use a tactical team to carry out a dynamic entry.

Quite a lot of visits turned out to be a waste of time, since the NFRTR has long been known to be full of errors. Usually, persons who had properly registered their destructive devices, but who had not been correctly listed in the NFRTR, were able to clear up the problem for less than $15,000 in legal fees.

There were also plenty of people who had bought destructive devices, but who had failed to register their firearm with ATF, as was now legally required. Some of these people had wanted to register, but their local police chief would not sign the necessary form. These people had kept their guns anyway, rather than take advantage of the gun surrender programs, which ATF offered several times a year throughout the United States.

The penalty for possessing an unregistered destructive device is a fine of up to $10,000 and 10 years in prison, per device. However, Attorney General Eric Holder ordered ATF to offer generous plea bargains to low-level first-time offenders (who had only one or two unregistered devices): a fine of only $5,000 per device, no prison time, and a felony plea, which would result in a lifetime ban on the person ever possessing any type of firearm or ammunition.

Persons who had bought a destructive device years ago, and who told ATF that they had later sold the gun or given it away, had no problems, as long as they could identify the person to whom they had given the gun, and that person admitted to ATF that he did indeed own the gun. Otherwise, ATF would initiate a prosecution. Federal courts were kept very busy with such cases.

The Obama administration celebrated its Supreme Court win with the most lavish party ever held at the White House, financed by generous gifts from Bloomberg and George Soros. Mr. and Mrs. Clinton were invited, but did not attend. They claimed that there was a scheduling conflict, but unnamed White House sources leaked the real reason:

Former President Clinton was despondent that on gun control, as on health policy, Obama had succeeded where Clinton had tried so hard, but had failed. Clinton and Obama both knew that Obama would be remembered as a far more influential president than Clinton—indeed, as one of the very few presidents who, despite lack of congressional support, had accomplished dramatic change during his second term.

President Obama had fulfilled his promise of “fundamentally transforming the United States of America.”