Musing on Obama’s gun violence proposals
For all the hoopla over Executive Orders and the “dangers” they pose, they are, when used properly, somewhat limiting. But only somewhat. Here’s a brief sketch of what can happen via EO:
Teddy Roosevelt was the ersatz father of the EO in America. He used it, in many cases, to protect valuable natural settings from rampant industrialism. Thanks, Teddy. We all owe you a debt for that. Here’s his take on Executive limits, from his autobiography:
“The most important factor in getting the right spirit in my Administration was my insistence upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional powers.”
But his cousin reached a bit further…
FDR imprisoned tens of thousands in “relocation camps” by EO (9066). Congress let this one slide. They looked like the “bad guys” after all. But Congress slapped Truman’s hand when Harry tried to seize 22 steel mills for government use. Lesson? We can use EO’s to flaunt Constitutional rights, but certainly not restrict capitalism. That’s a scary implication, but let’s leave that aside for a moment.
Only 2 EO’s out of over 13,000 have been reversed. Truman’s steel mill grab and one from Clinton attempting to block the federal employment of strike breakers (EO12954). So, either POTUS gets wide latitude or understands the inherent limits of the EO precedent and acts accordingly. One more potentially important fact before focusing on President Obama’s EO’s with respect to gun control. When Roosevelt instituted the EO precedent, he retroactively linked them back to Lincoln, a wartime President who handled more than a few things by placing more value on expedience than strict Constitutionality.
Let’s take each EO in turn. The list came from Fox/Slate, which got them from the White House. The comments are my own.
1. Issue a Presidential Memorandum to require federal agencies to make relevant data available to the federal background check system.
What relevant data, and how is that data limited or delineated?
2. Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.
The phrase “unnecessary legal barriers” bothers me. It just does.
3. Improve incentives for states to share information with the background check system.
As long as it’s legal, I’m good with this. You can find out just about anything about anyone with $5 and an Internet connection.
4. Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks.
The AG really can’t do much here. It’s apparently fairly simple for “bad people” to get guns.
5. Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun.
This really shouldn’t be a problem. There may be additional costs that could strain some smaller agencies. This should be considered before implementation.
6. Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers.
As long as they are, somehow, held accountable. Sending a letter without follow up actually encourages misbehavior.
7. Launch a national safe and responsible gun ownership campaign.
Ca-CHING! Might as well fry an egg in a pan. Wait…someone tried that already?
8. Review safety standards for gun locks and gun safes (Consumer Product Safety Commission).
Or you could just require them. Obama can’t write that law, but he could suggest it.
9. Issue a Presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations.
What will the cost of this be? And what will be the procedure for procuring and returning this evidence to local and state law enforcement?
10. Release a DOJ report analyzing information on lost and stolen guns and make it widely available to law enforcement.
Probably be cheaper to get someone to create a searchable “my gun was jacked” app.
11. Nominate a permanent ATF Director.
Todd Jones might do a good job. He understands the difficulty of the situation and may actually pass confirmation. We haven’t had a permanent ATF director since 2006…tough to get Senate confirmation. Of course, in recent years, it’s been tough to get the Senate to do much of anything.
12. Provide law enforcement, first responders, and school officials with proper training for active shooter situations.
LEOs and 1st responders, sure, but do we really need to be hosting monthly tactical training for every school administration team in the country? Live fire tactical scenarios are not like riding a bike. In these cases, too little training is just as dangerous as none.
13. Maximize enforcement efforts to prevent gun violence and prosecute gun crime.
Which should already be policy.
14. Issue a Presidential Memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence.
This casts the issue in too “meta” a context. First, “gun violence” is far too inclusive a term when what we are really talking about is crazy people gunning down children. Second, researching causes will not compel people to turn their crazy kids into police, nor will it allow police to detain dangerous people who have committed no crimes. This would be a great time to talk about potential mental health solutions.
15. Direct the Attorney General to issue a report on the availability and most effective use of new gun safety technologies and challenge the private sector to develop innovative technologies.
But people still have to use them. Trigger locks are inexpensive and gun safes cost less than the actual guns. Every gun owner should have and use at least one (preferably both).
16. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.
No, but privacy rights and common sense should. Physicians are not police, and neither have the authority to interrogate gun owners…or their children…without probable cause.
17. Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.
Threats are a relative term and discretion will still be the deciding factor here. When one day a shrink hears: “Eat your liver with fava beans and a nice chianti” and the next day he or she hears: “I’d blow that up real good” where does one draw the line? Only that doctor can decide. Otherwise we get this.
18. Provide incentives for schools to hire school resource officers.
Resource officers are a good thing. May also want to consider plain-clothes officers that would not be easily identified targets for potential shooters. Not “security.” Cops. Offer the jobs to MPs returning from active duty.
19. Develop model emergency response plans for schools, houses of worship and institutions of higher education.
Not a bad idea. But civilians are still civilians. See comments about tactical response above.
20. Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover.
21. Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges.
Will this include long-term care? Because that needs to be on the table.
22. Commit to finalizing mental health parity regulations.
23. Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health.
Talk all you want. You are still asking friends and relatives to have one of their own committed on their say so.
So, what’s the final thought on all of this? Honestly, there isn’t much here but fodder for lawyers, bookkeepers and talking heads. That’s the trouble with a list of incontrovertible ideas that are not, technically, incontrovertible. Those ideas cost money, before any cost/feasibility/projections analysis is done.
The meat of the argument will focus on the legislative ideas Mr. Obama sent to Congress. More on that later in this series. In the meantime…someone call Warren Zevon.
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