Editorial: Don’t restrict gun rights by executive order

The Detroit News

President Barack Obama will begin his final year in office by testing how much power he can consolidate in the executive branch. The president met Monday with Attorney General Loretta Lynch to go over his plans for expanding the nation’s gun control laws.

What he wants to do in restricting gun ownership is less important than how he intends to do it: by bypassing Congress and issuing executive orders. First up on his list is expanding background checks for gun purchases.

Obama is frustrated that Congress has failed to close what he calls the gun show loophole that allows some purchasers of firearms to avoid federal instant background checks.

Legislation that would have done much of what Obama wants was defeated in the Senate in December.

So now the president is threatening to put legislation in effect through the agency rule-making process, as he has done previously when his agenda has been thwarted by Congress.

But gun ownership is different than immigration and energy policy in that it is protected by the Second Amendment. Obama will have a much more difficult time convincing the courts that he can restrict constitutionally guaranteed rights by executive fiat.

There is no frustration clause in the Constitution. The president may rightly feel that Congress is abdicating its responsibility to keep Americans safe. But the founders intentionally made lawmaking both a deliberative and collaborative process.

It is not always convenient for a president to work within those constitutional restraints, but they exist for a reason, and despite Obama’s crisis rhetoric, the recent mass shootings do not rise to such a grave emergency as to merit suspending representative government.

If the president wants tougher gun laws, he must convince Congress to send them to his desk. That’s how our system works.

Obama is starting with background check expansions because it enjoys considerable public support, according to polling.

But like another item on his gun control wish list — restoring the ban on assault weapons, large-clip rifles cosmetically designed to resemble military firearms — it is not likely to make much impact on either mass shootings or general gun violence, which by the way, is on a 25-year downward trend. Most of the mass shootings were committed with guns obtained legally or borrowed or stolen from friends and family.

The president often repeats that 40 percent of guns are sold at gun shows, with the implication that background checks are not required. It’s a claim echoed by Democratic presidential contender Hillary Clinton on the campaign trail. The assertion, according to both FactCheck.org and Politifact, is based on a scanty 1994 telephone survey and is largely inaccurate. Most weapons are obtained through retail sales or private transactions between family members and friends.

The Washington Post cites a 2004 survey of those convicted of gun crimes indicating that less than 2 percent obtained their weapons at gun shows.

And the law for guns sold inside guns shows is no different from those bought elsewhere. If purchased from a licensed dealer, background checks are required. Transactions between individuals, whether at a gun show or elsewhere, do not require background checks.

There certainly are improvements that can be made in screening those who purchase weapons, and perhaps the president’s proposals are among them.

If so, his obligation is to sell them to Congress. He does not have the option of ignoring the people’s representatives in restricting the Second Amendment. Obama may be desperate to secure his legacy in this final year, but he should understand that his pen is not mightier than the Constitution.