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.
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America's 1st Freedom
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