Obama: I'm working on gun control under the radar

[OakRidgeStars]

The least surprising news of the day

http://www.greeleygazette.com/press/?p=9614

[Taggure]

There are three branches in the United States government as established by the Constitution. First, the Legislative branch makes the law. Second, the Executive branch executes the law. Last, the Judicial branch interprets the law. Each branch has an effect on the other.

Now tell me where the Executive branch has the power to make regulations?

I found this on Wikipedia and it looks like Govermental agencies are created by Congress and fall under what is called the Administrative Procedure Act so I am not sure but one would think that the congress may have something to say if they were pressured just like they did with the EPA.

Most federal agencies are created by Congress through statutes called "enabling acts" which define the scope of an agency's authority. Because the Constitution does not expressly mention federal agencies (as it does the three branches), some commentators have called agencies the "headless fourth branch" of the federal government. However, most independent agencies are technically part of the executive branch, with a few located in the legislative branch of government. By enacting the Administrative Procedure Act (APA) in 1946, Congress established some means to oversee government agency action. The APA established uniform administrative law procedures for a federal agency's promulgation of rules, and adjudication of claims. The APA also sets forth the process for judicial review of agency action.

[gunderwood]

Hey! Were we not called crazy for suggesting that Obama was anti-gun these last two years? We were told over and over again that he wasn't going to "take your guns away," but apparently he is...

@Taggure

If you're going to ask that question, you need to go deeper than that. Where in the Constitution is Congress given the power to create a regulator agency period? Any power not explicitly given to them is reserved for the states. It also flies in the face of self governance when you create a new branch which neither the states nor the people have any real power over.

[Taggure]

Point well taken; and yes I do see that this is a real problem. Now we just need to think of a way to get these Rouge Agencies and their Appointed Czars under control. Election and then the new President can cancel all of the harm this President has done? However it goes it coould and probably will be a painfull process

[NickLikesGuns]

It's second hand but it I wouldn't doubt it.

[Chasbo00]

Point well taken; and yes I do see that this is a real problem. Now we just need to think of a way to get these Rouge Agencies and their Appointed Czars under control. Election and then the new President can cancel all of the harm this President has done? However it goes it coould and probably will be a painfull process

Need to get the Repubs in the House energized to start talking about targeted reductions in appropriation and authorization bills for the BATF and some others. This is what the NRA should be doing among other things.

[gatlingun6]

There are three branches in the United States government as established by the Constitution. First, the Legislative branch makes the law. Second, the Executive branch executes the law. Last, the Judicial branch interprets the law. Each branch has an effect on the other.

Now tell me where the Executive branch has the power to make regulations?

I found this on Wikipedia and it looks like Govermental agencies are created by Congress and fall under what is called the Administrative Procedure Act so I am not sure but one would think that the congress may have something to say if they were pressured just like they did with the EPA.

Most federal agencies are created by Congress through statutes called "enabling acts" which define the scope of an agency's authority. Because the Constitution does not expressly mention federal agencies (as it does the three branches), some commentators have called agencies the "headless fourth branch" of the federal government. However, most independent agencies are technically part of the executive branch, with a few located in the legislative branch of government. By enacting the Administrative Procedure Act (APA) in 1946, Congress established some means to oversee government agency action. The APA established uniform administrative law procedures for a federal agency's promulgation of rules, and adjudication of claims. The APA also sets forth the process for judicial review of agency action.

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Basically that power comes from the same Constitution that established the 3 branches of government and the resulting separation of powers. Article 1, Section 8 Powers of Congress is a long list of those powers. The article says WHAT, but not HOW. So how does the government "borrow money on the credit of the United States"? Over time they figured out the HOW. Was there another way to accomplish the same end? Yes.

Essentially laws establish What does the how under the control of whom. Since Congress can't possible specify how everything will be done, the entity is given broad authority to create rules and regulations that come under the purview of administrative law.

Section 8 closes with: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

By any measure that is a broad mandate for the Federal Government. It goes straight to all the HOWS implicit in all those WHATS. At the end it capitalizes Department and Officer, but nowhere does the Constitution lists all these Departments or Officers.

Article 2, Section 2: "Civilian Power over Military, Cabinet, Pardon Power, Appointments" does much the same. It references executive Departments, Offices, Officers of the United States, inferior Officers, etc. Again, nowhere does the document specify who these are, and how they do what they may be charged to do.

Since the framers wanted to create an enduring document there was little else that they could do. Why is this a problem today? Because all too many of us who claim to revere the Constitution actually revere our own version, not as it it, or has come to be legally interpreted.

Too many of us see the Constitution as much more specific than it is, or was intended. If the Constitution said the Congress has the power to build a house, some of us would claim that didn't give them the authority to buy the wood, or bricks, or hire carpenters, a contractor, or create a house building agency, etc. Such people reject the concepts of "implied powers" or the "necessary and proper" clause. Finally, we set the Constitution in stone by ignoring the many SCOTUS opinions. In effect we try to cloak our political ideology with the imprimatur of the Constitution.

There is nothing particularly sinister or evil about this since folks of every political stripe, some more than others, use the Constitution to advance their political agendas.

It also brings forth various Constitutional Interpretive legal philosophies, which will be debated forever.

As far I'm concerned robust Constitutional discussions are valuable to us all. Certainly better than the alternative total ignorance.

Gat6


Gat6

[gunderwood]

Point well taken; and yes I do see that this is a real problem. Now we just need to think of a way to get these Rouge Agencies and their Appointed Czars under control. Election and then the new President can cancel all of the harm this President has done? However it goes it coould and probably will be a painfull process

Need to get the Repubs in the House energized to start talking about targeted reductions in appropriation and authorization bills for the BATF and some others. This is what the NRA should be doing among other things.

+1

With all the stats now showing that background checks, etc. being ineffective we should be pushing to defund those organizations whose only purpose was to enforce them. Seriously, with the budget as bad as it is why are we funding LE which statistically isn't providing any value or is redundant in the limited value it does provide? I wrote my House rep about it (a republican), but he didn't seem interested.

[gunderwood]

Essentially laws establish What does the how under the control of whom. Since Congress can't possible specify how everything will be done, the entity is given broad authority to create rules and regulations that come under the purview of administrative law.

LOL. Perhaps if they only concerned themselves with those things which are Constitutional they would have the time to DO THEIR JOBS!

The founders never intended to create a administrative bureaucracy which was not beholden to the people. If they wanted to do that they could have. They purposefully split the power to make law and enforce it for good reasons.

Just more statist diatribe.

[gatlingun6]

Point well taken; and yes I do see that this is a real problem. Now we just need to think of a way to get these Rouge Agencies and their Appointed Czars under control. Election and then the new President can cancel all of the harm this President has done? However it goes it coould and probably will be a painfull process

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Could you please name the so-called Rouge Agencies and why they are such? When were they declared Unconstitutional, and how did they come into existence? When did you first object to appointed Czars and why? And what, and where is all the harm created by this President? How does your daily life differ under this President than the last President?
It's impossible to discuss a fuzzy.
Gat6
Be Obscure clearly

[gunderwood]

Point well taken; and yes I do see that this is a real problem. Now we just need to think of a way to get these Rouge Agencies and their Appointed Czars under control. Election and then the new President can cancel all of the harm this President has done? However it goes it coould and probably will be a painfull process

***************************************************************************
Could you please name the so-called Rouge Agencies and why they are such? When were they declared Unconstitutional, and how did they come into existence? When did you first object to appointed Czars and why? And what, and where is all the harm created by this President? How does your daily life differ under this President than the last President?
It's impossible to discuss a fuzzy.
Gat6
Be Obscure clearly

How about the BATFE? They've been called such by Congress several times and they've also been cited as violating Constitutional rights of citizens in Congressional hearings. This isn't something new either. Congress has attempted to reform them many times, but the culture there is of jack booted thugs. The latest incident was their helping supply firearms to the Mexican drug cartels.

[gatlingun6]

Essentially laws establish What does the how under the control of whom. Since Congress can't possible specify how everything will be done, the entity is given broad authority to create rules and regulations that come under the purview of administrative law.

LOL. Perhaps if they only concerned themselves with those things which are Constitutional they would have the time to DO THEIR JOBS!

The founders never intended to create a administrative bureaucracy which was not beholden to the people. If they wanted to do that they could have. They purposefully split the power to make law and enforce it for good reasons.

Just more statist diatribe.

********************************************************************************
Can you be a bit more specific? How do you know that the founders, or do you mean the "framers", didn't mean to create an administrative bureaucracy? Article 1, Section 2: "Limits on Congress" Nowhere states that Congress does not have the authority to create an administrative bureaucracy.

The Constitution was not created in a vacuum, a Confederacy of States existed prior to the new Constitution with attendant administrative bureaucracies.

Since Congress through the Constitution or the Constitution itself made it possible to create administrative bureaucracies how are they not beholden to the people? You mean we no longer have a right to vote? Admittedly, there are numerous states doing all they can to limit the number of voters. While others are saying we need tests and other vehicles to do the same.

Don't you think this would be a better discussion if you just stated how you want to see the Constitution Amended, rather than picking and choosing what you don't like about our government and summarily declaring whatever it is Unconstitutional ? Then we could discuss the nature and relative value of the proposed amendment. Or just to be sure I don't get tripped up, are we discussing opinions devoid of facts, logic, or something else?

In the end it seems that your argument goes right to the ancient anti-Federalist argument. They said the federal government was too far away from the people to be trusted with such powers. Anti-Federalists vehemently objected to Federal Supremacy, instead they wanted to amend rather than replace the Articles of Confederation. So maybe we ought to go back and revisit that much debated Federal Supremacy versus States Rights.
Gat6

[gunderwood]

@Gat6

The fundamental difference is this. You believe that the federal government has the power to do all things unless it is expressly forbidden (then you just get the courts to reinterpret it so even that which is forbidden isn't anymore). I, on the other hand, believe it is limited to what is expressly given to it and not one iota more. The very fact that the 10th Amendment was passed lends credibility to my position as do the Federalist/Anti-Fed debates.

The government you believe in is limitless for all intents and purposes. Even Madison acknowledge that such an interpretation would be such and argued it was absurd.

[gatlingun6]

@Gat6

The fundamental difference is this. You believe that the federal government has the power to do all things unless it is expressly forbidden (then you just get the courts to reinterpret it so even that which is forbidden isn't anymore). I, on the other hand, believe it is limited to what is expressly given to it and not one iota more. The very fact that the 10th Amendment was passed lends credibility to my position as do the Federalist/Anti-Fed debates.

The government you believe in is limitless for all intents and purposes. Even Madison acknowledge that such an interpretation would be such and argued it was absurd.

************************************************************************************
Thanks Gunderwood:
The above is an interesting counter argument that unfortunately veers off into fantasy land. Nothing I said, or implied suggested that governmental authority is unlimited.That's over the top hyperbole, which is irrelevant.

The absurd assertion is, however, understandable. It's changes the focus of the discussion away from specifics. My quotes related to the meaning of specific Constitutional Provisions in Articles 1 and 2, which you did not address. I used the "build a house" analogy to explain what those provisions meant. Everything else was generally accepted legal interpretations of same.

You countered with an expected 10th Amendment argument. However, you added one word that substantially altered the 10th's meaning, and therefore the Constitution itself. The 10th basically restated Article II of the Articles of Confederation ("Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled"). The 1st Congress, however, specifically rejected inclusion of the word "expressly" before the word delegated in the approved 10th Amendment. This was not an accident.

Logically Congress had to recognize that "expressly" would have substantially changed the newly ratified Constitution. It would have nullified the "necessary and proper" clause, and left the new Federal Government without the means to accomplish the ends authorized by the Constitution.

SCOTUS has generally taken Alexander Hamilton, the majority of the "framers", and Justice Marshal's view that the 10th neither added nor detracted from the Constitution as originally ratified.

Without sinking deeper into the historical morass, where does this leave our discussion? Apparently we know enough about each others respective positions to reach some conclusions:
1. You're basically an anti-federalist, and I'm a Federalist.
2. You would have voted no to ratification of the new Constitution, and I would have voted yes.
3. You want to Amend the Constitution to add expressly to the 10th.I don't.
4. Apparently you believe that almost all Federal Departments, Agencies, Commissions, Offices, Officers, etc. are unconstitutional if they are not "EXPRESSLY" listed in the Constitution. I don't, I believe in the elastic clause.
5. You generally believe in State Supremacy (States Rights). I believe in Federal Supremacy as expressed by the Constitution. I believe as Hamilton, Madison, Marshal and the framers indicated: If the Federal Government has the authority under the Constitution to do it, then it also has the legislative authority to assert that power over the States.
6. In Marbury V Madison Justice Marshal opined: "It is emphatically the province and duty of the Judicial Department to say what the law is". I agree with Marshal, I'm not sure if you do. That's not to say that I agree with every SCOTUS opinion because I don't.

While I love historical discussions, sweeping generalizations and a few welled placed quotes only hi-light the inherent problems with history. As someone once said history is not about the past, or even the present, but about the future because he who controls history also controls the future.

What's the bottom line? To paraphrase Secretary Rumsfeld: We have to live with the Constitution we have, not the Constitution we wish we had.

Btw if I misrepresented your position in any way call me on it.

Gat6
Be Obscure clearly

[Taggure]

Barring the entire political BS about this issue; I just think that it is wrong. If this and other Presidents don't like something and can't get the Congress to do what they want they try to do an end run around it with Executive orders and influence creation of regulations.

My thoughts on this is that the President (and I don't care the political party as they are both as bad as the other) would use those powers that he only when the Congress can not or will not make a decision on.

I think I take most offence to the Sneaky way in which our elected officials conduct business.

It just aint right

[gatlingun6]

Point well taken; and yes I do see that this is a real problem. Now we just need to think of a way to get these Rouge Agencies and their Appointed Czars under control. Election and then the new President can cancel all of the harm this President has done? However it goes it coould and probably will be a painfull process

***************************************************************************
Could you please name the so-called Rouge Agencies and why they are such? When were they declared Unconstitutional, and how did they come into existence? When did you first object to appointed Czars and why? And what, and where is all the harm created by this President? How does your daily life differ under this President than the last President?
It's impossible to discuss a fuzzy.
Gat6
Be Obscure clearly

How about the BATFE? They've been called such by Congress several times and they've also been cited as violating Constitutional rights of citizens in Congressional hearings. This isn't something new either. Congress has attempted to reform them many times, but the culture there is of jack booted thugs. The latest incident was their helping supply firearms to the Mexican drug cartels.

***********************************************************************************
Gunderwood: Ahhh the ATF, the entity we gun owners love to hate. Is it now reduced to one rogue entity or is it that the ATF is a prime example? Anyway this is a 2 part reply.

Part 1: It's unfortunate that you resurrected the "jack booted thug" phrase to characterize ATF government employees. Did you mean to liken the 600 or so ATF Special agents to the NAZIS?

In a fundraising letter to NRA members, dated April 13, 1995, NRA Executive Vice President Wayne LaPierre called federal officials who enforce U.S. gun laws “jack-booted government thugs.” LaPierre tied the phrase to a Clinton-administration law that banned certain semi-automatic weapons. He wrote: “…the semiauto-auto ban gives jack-booted government thugs more power to take away our constitutional rights, break in our doors, seize our guns, destroy our property, and even injure or kill us.”

After mounting criticism for likening Federal Agent to the NAZIS, LaPierre issued a public apology. He then claimed that he only intended to criticize isolated actions that primarily involved the ATF. I for one don't think anyone advances their position by invoking the NAZIS. I wanted to be sure that "jack booted thug" didn't get mixed up with what Congress has said, or not said about the ATF. Senator Bob Dole led the Senate at the time, and he sure as hell did not agree with LaPierre and thought that LaPierre should apologize. President Bush even resigned from the NRA over the statement. So on to Part 2.

Part 2:
I'm confused. The ATF is a Constitutional law enforcement, and administrative entity organized and dedicated to carrying out the provisions of specific legislation concerning specific issues promulgated by Congress and enacted into law with the President's signature. It is under the control of the Executive Branch.

I know of no Congressional resolution that characterize the ATF as an unlawful, i.e. unconstitutional organization. If you do please cite and reference the resolution. I know of no legal challenges to the ATF's existence. If you do please cite the case.

If Congress actually thought the ATF was unconstitutional wouldn't they legislatively disband it, and revoke the gun laws they are directed to enforce?

The rest of the post no one need read since it's clear that ATF has never been declared by Congress or SCOTUS to be unconstitutional, nor a rouge law enforcement and administrative entity.

Have ATF agents committed illegal acts? Yep? Has the ATF engaged in questionable tactics and strategies at times? Yep? Is the same true of the FBI, CIA, IRS, NSA, DOD, The office of the President, Office of the Vice President, The Congress, Department of State, etc. etc. Yep! How can it be otherwise since people make mistakes, and some engage in criminal activities. In short, the same is true of every federal government entity, but that doesn't make the entity unconstitutional.

When the ATF goes off the rails as it seems they did with Operation "Fast and Furious" those responsible should be held accountable if it's concluded that they did something illegal, or stupid.

I had to laugh when you said that Congress has attempted to reform ATF many times. Reform the ATF to do what? Be more efficient, and effective in carrying out their legally mandated mission? Is the following what you mean by reform?
1. The ATF when it comes to gun law enforcement, or anything else concerning firearms is habitually under funded.
2. In a single year the ATF inspects approx 10% or less of FFLs holders. Maybe an FFL holder will be inspected once every decade. Why? A shortage of inspectors. Should FFLs holders be inspected more than once a decade?
3. Instant check (NCIS) suffers from a lack of resources. Question: Does reform mean we improve the system, or drop it? Do we bring the 30% to 40% of gun sales where no check is performed into the system? Or do we keep it the way it is? Personally I will not, and could not in good conscience sell any of my firearms to an individual without identification. I would be devastated to find out that a weapon I cavalierly sold through a want ad, or at a gun show turned up at a crime scene where the buyer was the perpetrator of a violent crime. When or if I sell any of my weapons I will keep a record of the verified name of the buyer with the date, time and location of the sale. If it were available would I pay a small fee to a FFL holder to run a background check? Yes I would.

Is my desire to see all gun purchases with certain exceptions come under NCIS the rantings of some wild eyed leftist anti-gun extremist? I don't think so because there are numerous polls showing that anywhere from 65% to over 80% of Americans support the same thing. Even a majority of NRA members want an increase in background checks.

4. Then there's TRACE the system that assists local law enforcement in tracking guns used in crimes when requested, and National Integrated Ballistic Information Network (NIBIN). Has Congress proposed reforms to these systems? I don't know.

Instead of reforms, from my lowly perch I see politicians who can't agree on what and how the ATF does its job. I suppose it goes to the definition of "reasonable gun regulations". Until politicians and interest groups sit down and come to some agreement, the ATF will continue to be the whipping boy for all sides of the gun control issue. Recently the President invited the NRA's leadership to a sit down meeting. Inexplicably the NRA declined which made absolutely no sense.

Gat6

[zephyp]

1. You're basically an anti-federalist, and I'm a socialist twit.

There, fixed it for ya....

[dems4guns]

So, quoting a right wing web site makes this legitimate?
This is factually suspicious and likely taken out of context.
Obama haters are willing to stoop to anything.

This is the official position of the Whitehouse on firearm regulations/legislation:
(January 22, 2009)"End the Dangerous Cycle of Youth Violence: Obama and Biden support innovative local programs, like the CeaseFire program in Chicago, which implement a community-based strategy to prevent youth violence and have been proven effective.

"Address Gun Violence in Cities: Obama and Biden would repeal the Tiahrt Amendment, which restricts the ability of local law enforcement to access important gun trace information, and give police officers across the nation the tools they need to solve gun crimes and fight the illegal arms trade. Obama and Biden also favor commonsense measures that respect the Second Amendment rights of gun owners, while keeping guns away from children and from criminals. They support closing the gun show loophole and making guns in this country childproof. They also support making the expired federal Assault Weapons Ban permanent."

January 2011 Press Conference Robert Gibbs Answer: " The President, again, since I have been with him in 2004, has supported the assault weapons ban, and we continue to do so. And I think we all strive, regardless of party, to ensure that we’re doing everything we can to reduce violence. We’ll have an opportunity to evaluate some of the other proposals."

I can't think of a reason why anyone would disagree with repeal of the Tiahrt Amendment since we want criminals to be held accountable.

I see no reason why we shouldn't require anyone purchasing a handgun to go through the same background check that FFL's have to go through. None of us wants to sell a handgun to a violent felon.

However I see no reason why we should restrict assault weapons. The floodgate has already been opened. Magazine size should be under the State's rights to regulate. Machine guns should require a permit, though.

If Obama wishes to use the Executive Authority to regulate certain firearms, I see nothing wrong with that as a legal way to regulate as long as it doesn't make it harder to possess and transport handguns and firearms in my private vehicle and on private property.
Dems4Guns

[gunderwood]

Part 1:

You are correct as to the historical context of that term to the best of my knowledge. I never said Congress called them that. I do think they have earned it though...

1. Purposefully and institutionally lying under oath to get convictions of otherwise innocent citizens.
2. Enforcement activities which focus on technicalities and entrapment rather than real crime (that is Congress/oversight by the way).
3. Over zealous use of force which has resulted in the deaths of innocent citizens.
4. Creating the crime and then lobbying for more power to control it. (e.g. Mexico gun running)
5. Etc.

I can't even contemplate the human being who would consider lying as part of their job so as to ruin the lives of otherwise innocent citizens. If that doesn't qualify as a jack booted thug, what does?



Part 2:

I know of no Congressional resolution that characterize the ATF as an unlawful, i.e. unconstitutional organization...I had to laugh when you said that Congress has attempted to reform ATF many times. Reform the ATF to do what?

The current investigation of the "gunwalker" resulted in a letter by Senator Grassley reminding them that some of their apparent actions were unlawful. The Congressional hearings which led up to the 1986 Firearm Owners Protection Act called the specific actions of the BATFE as having exceeded the the authority Congress instilled in them.

When Sen. Grassley learned of the email and also of alleged retaliation attempts against whistleblowers, he fired off a letter April 8 to ATF Acting Director Melson. The letter states that it is “unlawful” for ATF to “inappropriately intimidate employees to discourage from speaking with Congress.”

In the Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session (February 1982), a bipartisan subcommittee (consisting of 3 Republicans and 2 Democrats) of the United States Senate investigated the Second Amendment and reported its findings...It concluded that seventy-five percent of Bureau of Alcohol, Tobacco, Firearms and Explosives prosecutions were "constitutionally improper", especially on Second Amendment issues.

http://en.wikipedia.org/wiki/Firearm_Ow ... ection_Act

Reform them to do what? How about not be "constitutionally improper" in 75% of their prosecutions!

Instead of reforms, from my lowly perch I see politicians who can't agree on what and how the ATF does its job. I suppose it goes to the definition of "reasonable gun regulations".

FOPA was a reform bill. We're not going to come to an agreement on what reasonable is...I'm going with shall not infringe. However, that begs the question, how can Congress create (or it be Constitutional) any law or agency to enforce said law when they are explicitly forbidden from infringing? It doesn't say somewhat infringe.


Edit: This was also an attempt at reform, but Democrats usually block it (see it's even in the name ): http://www.opencongress.org/bill/111-s941/actions_votes