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Siege: Gun Owners Face An Unprecedented Assault on Their Rights

Friday, February 1, 2013

The morning after the election, President Barack Obama's U.S. Mission to the United Nations voted to recommence negotiations on an international Arms Trade Treaty, known as the ATT. This past summer ATT negotiations collapsed, in part due to the U.S. delegation’s concern that a major U.S. anti-gun treaty could harm Obama's re-election chances.

Now, those constraints are gone. The U.S. State Department’s legal advisor, Harold Koh, is on record expressing support for an international treaty that would completely eliminate lawful commerce in firearms. And until that can be achieved, he’ll continue to support the greatest restrictions possible.

Ratifying the U.N.'s ATT in the U.S. Senate would be difficult, but the last time a president actually lost an up-or-down Senate vote on a major treaty to which he had committed all of his political capital was in 1920, when the Senate rejected Woodrow Wilson’s League of Nations treaty.

Of course, a treaty in itself cannot repeal the Second Amendment, but it can influence how courts interpret the Second Amendment. Further, to influence a court’s decisions, a treaty need not even be ratified—U.S. courts, including the Supreme Court, have cited unratified treaties as well as treaties from other continents.

The respective constitutions of many nations specify that international law is part of the nation’s constitution. So regardless of U.S. Senate ratification, an ATT will become, in much of the rest of the world, a powerful club that will be used to destroy much of what remains of lawful gun ownership. 

Even if the language in the ATT itself is not as draconian as it could be, the authoritative interpretation of U.N. treaties is up to the bureaucrats and delegates appointed by the U.N. to the treaty oversight agency. Repeatedly, U.N. agencies have announced interpretations that have little or nothing to do with a treaty’s text. 

For example, nobody predicted in 1979 when the Convention on the Elimination of All Forms of Discrimination Against Women was created that the U.N. would interpret the convention to mean that Mother’s Day is illegal because the holiday emphasizes the role of women as mothers rather than as salaried workers. (Fortunately, the U.S. has never ratified this convention.) Since the balance of power at the U.N. is held by the minions of tyrannical and thieving governments, expect the U.N.’s interpretation of the ATT to implement their vision of total disarmament of freedom-loving people all over the world.

In the long run, the more that the United States becomes isolated as the only nation with Second Amendment rights, the less likely this freedom will survive. Like it or not, there are plenty of Americans, and plenty of American legislators and judges, who are uncomfortable with the U.S. being too different from the rest of the world. For instance, suppose the gun laws in Western European nations were nearly the same as those in Nebraska—would the pressure for gun control in the United States be nearly as intense as it has been for the last half-century?

Conversely, suppose that the U.S. became the only democratic nation where more than 10 percent of the population owned firearms. This fact alone would significantly increase domestic U.S. pressure for gun control.

A second post-election certainty is that President Obama will appoint many more federal judges—perhaps hundreds. Bill Clinton appointed 373 during his two terms. While the U.S. Supreme Court might only hear a Second Amendment case every few years, the practical details of the legal meaning of the Second Amendment are determined by dozens of cases heard by the federal circuit courts of appeal. Most of the federal circuit courts currently have a fairly close balance between left-leaning and right-leaning judges. In most of the circuits, additional Obama appointments will put the left solidly in charge.

Of course, not all left-leaning judges are anti-gun, nor are all right-leaning judges reliable supporters of the Second Amendment. Yet the fact that Obama-appointed judges will, in most instances, be picked because of their established records as leftists means most will be relatively hostile to Second Amendment rights.

Then there’s the U.S. Supreme Court. Justices Antonin Scalia and Anthony Kennedy will both turn 80 before Obama’s term is over. Justice Clarence Thomas is 64. Presumably none of them wants their successor appointed by President Obama, but any one of them could leave the court for any number of reasons in the next four years. 

An Obama appointment of the successor to just one of these justices would turn the Heller and McDonald 5-4 majorities in favor of the Second Amendment into a 5-4 majority opposed to the individual right to keep and bear arms. The new Obama majority could overrule Heller and McDonald entirely, eliminating that guaranteed individual right for law-abiding citizens. Or they could interpret Heller and McDonald very narrowly, authorizing bans on many types of firearms, repressive licensing and registration systems and punitive taxes.

It’s very likely that Justice Ruth Bader Ginsburg, who turns 80 this March, will retire during Obama’s second term, and it’s possible that Justice Stephen Breyer, age 74, could do the same. Along with the loss of some of the older pro-Second Amendment justices, the Obama appointments would create a solid anti-gun majority on the U.S. Supreme Court that would endure for decades to come.

Will Congress enact new anti-gun laws at the behest of President Obama?  

The gun prohibitionists have historically maximized their windows of opportunity after a notorious gun crime, such as the horrific murders of schoolchildren in Newtown, Ct., that took place as this issue goes to press. You’ve already seen the strategy at work in the United States: One, legislation is drafted ahead of time, ready to be introduced the moment an opportunity presents itself; Two, the legislation is rushed through while emotions are highest; Three, forward momentum is key, with the legislation never allowed to be slowed by objections over technical errors or practical problems with the bill.

Candidate Obama chose not to seize the opportunity to make a major push for gun control after the 2007 murders at Virginia Tech or the 2012 murders at a movie theater in Aurora, Colo. But now his political calculus is different, and with no more election campaigns to run, he has no personal need to avoid arousing the ire of gun owners.

In fact, history shows that pro-gun majorities in Congress can be upended by a single, terrible crime. The assassination of Robert Kennedy in 1968 led directly to the passage of the Gun Control Act of 1968. 

President Obama is now far more likely to follow the model of President Lyndon Johnson in 1968 and use the Newtown tragedy as his opportunity to ram gun control through Congress.

Of course, at the top of Obama’s list is a ban on so-called “assault weapons,” which he re-affirmed in the second presidential debate last October. Don’t be fooled into thinking he wants to ban fully automatic guns—this has absolutely nothing to do with machine guns.

As an Illinois state senator, Obama supported banning all semi-automatic firearms, whether handguns, rifles or shotguns. He voted for and co-sponsored extremist gun prohibition legislation. He is not just after semi-automatic rifles like the AR-15 or various AK clones, which have a military appearance but fire just one shot per trigger pull like every other gun. Rather, Obama has repeatedly shown that the “assault weapons” he wants to outlaw are literally tens of millions of commonly owned semi-automatic firearms.

Along with the courts and Congress, perhaps the greatest danger of all is what President Obama will be able to do, singlehandedly, by regulation. 

Over the last 80 years, Congress has abdicated much of its law-making authority to the executive branch. Congress enacts statutes of several thousand words and allows executive branch agencies to “fill in the details” of these statutes by creating regulations of hundreds of thousands of words.

To create a regulation, an agency follows certain procedures such as publishing a draft, allowing time for public comment and providing a written rationale for its decisions. As long as an agency is careful to follow the correct procedures, courts almost never overturn agency regulations or other administrative decisions.

New York City Mayor Michael Bloomberg has already sent the president a blueprint of gun control initiatives that Obama can take unilaterally, without congressional consent. These initiatives include a large expansion of bans on the importation of firearms, and keeping federal registration records of all gun buyers for six months after the purchase of a firearm. 

Proceeding by regulation, Obama can inflict enormous damage on the Second Amendment. In fact, without even following the normal regulatory process, the Obama administration has already imposed a requirement that gun sellers in any state bordering Mexico must report the purchase of any two semi-automatic long guns within a week to the Bureau of Alcohol, Tobacco, Firearms and Explosives. BATFE then keeps a permanent registration record of that purchaser.

In the NRA’s view, this requirement is a flagrant violation of the federal statute prohibiting BATFE from ordering licensed firearm dealers to submit any information other than what the federal statute itself requires. Yet so far, the Obama administration has gotten away with this unilateral gun registration scheme. 

Federal law also gives the Attorney general discretion to classify many firearms, particularly shotguns of 

28-ga. or larger, as “destructive devices.” Once something is designated a destructive device, continuing to possess it requires one to undergo the same arduous process as if the individual was buying a fully automatic gun.

Some environmental extremists have already filed suit demanding that the Obama administration outlaw the use of lead in ammunition, pursuant to the Toxic Substances Control Act. Thus far, the Environmental Protection Agency has opposed the lawsuit, but if the epa were to switch positions 

for political reasons, it wouldn’t be the first time.

Obama could opt to drastically expand bans on gun imports. In 1968, the Gun Control Act gave the president the discretion to ban guns that were supposedly not suitable or adaptable to sporting purposes. No administration has ever lost a court case on import bans. In Obama’s first term, his administration produced a “study” imposing new limits on shotgun importation and also blocked the import of 800,000 m1 Garand rifles from South Korea. (These rifles, ironically, had originally been manufactured in the United States.)

A mere three weeks after the election, Obama began rolling out a barrage of regulations that had been kept quiet until after the election. These long-prepared and long-concealed regulations will drastically affect the economy, the environment and public health. Expect a similar blizzard of anti-gun regulations when Obama decides the time is right.

The practical response to these Obama regulations would be for Congress to pass statutes overturning them. This can be done. However, President Obama can veto a new statute, and it takes a two-thirds majority of each house of Congress to overturn a veto. Overturning a presidential veto is very difficult under any circumstances, and getting a two-thirds override in the Senate would likely be impossible.

Worse yet may be what the Obama administration does in the core constitutional duty of the presidency: to “take Care that the Laws be faithfully executed.” We already know what happened in the first Obama term. With the full knowledge of (at least) Attorney General Eric Holder’s top assistants, “Operation Fast and Furious” arranged for the illegal delivery of over 2,000 firearms to Mexican drug cartels. The Obama/Holder administration then tried to use the “discovery” of these same firearms at Mexican crime scenes to build support for restricting Second Amendment rights.

“Fast and Furious” was a flagrant violation of federal criminal law, but nobody has been prosecuted for it. Once it was exposed, a few people were forced to resign, while others were transferred to different jobs. The Obama administration’s cover-up began the day that “Fast and Furious” was exposed, and has continued ever since.

During the 1990s, NRA Executive Vice President Wayne LaPierre pointed out how the Clinton administration said that criminal gun violence proved the need to impose many new and oppressive gun controls. Yet at the same time, the Clinton administration rarely did much to enforce the existing federal laws against gun possession by convicted violent felons. Was “Fast and Furious” an even more direct effort by some in the administration to promote gun crime, and then use it as a springboard for gun control?

 We don’t know, and may never know, the true agenda behind “Fast and Furious.” What other schemes might we not know about? What other deadly and cynical anti-Second Amendment plans are being implemented as we speak? We do know that President Obama convinced Attorney General Holder (an anti-gun veteran of the Clinton administration) to stay on—even though (or because?) Holder repeatedly obstructed the congressional investigation into “Fast and Furious.”

When the nation’s top law enforcement officers are hostile to the Second Amendment, they can cause nearly unlimited damage. The Clinton administration devastated the ranks of federally licensed firearm dealers, driving out of business most of the people who were operating low-volume, second businesses at home, fully complying with all federal laws. 

Meanwhile, dangers in some states are greater than ever.  The anti-gun lobby has grown far more dangerous than before since the gun-ban lobby today has a new national leader: 

New York Mayor Michael Bloomberg. Unlike the Brady Campaign, he does not depend on donations from supporters. His wealth is well over a billion dollars. He has an unlimited capacity to hire lobbyists and dump money into political campaigns. All of the campaign finance “reform” laws that have been created with the express purpose of crippling the NRA membership’s ability to participate in elections have also been written with deliberate loopholes to magnify the power of anti-gun billionaires like Bloomberg and George Soros.

In California, New York and Colorado, both houses of the legislature are now in the hands of majorities that are strongly anti-gun. Bloomberg’s lobbyists are going to be all over these state capitols, pushing dozens of harshly restrictive new gun laws.

California and New York together have 18 percent of the entire U.S. population. There will be an immediate Attempt to make those already oppressive laws considerably worse. 

Colorado will be a particular target for Bloomberg. Every anti-gun law passed there will be hailed by the national media as the beginning of a new trend—as the type of law which ought to be passed in every state. Any bad laws that come out of Colorado will endanger almost every other state.

In the campaign against the Second Amendment, you can be quite sure that Obama and Bloomberg will say anything, no matter how untrue, in order to advance their anti-gun agenda. Obama has repeatedly claimed that so-called “assault weapons” (all of which are semi-automatics) that he wants to outlaw are fully automatic battlefield weapons. 

As soon as Obama took office, he and his administration began claiming that 90 percent of Mexican crime guns come from the United States. The truth is, the correct figure was closer to 12 percent, at least before the Obama administration’s “Operation Fast and Furious” began funneling guns from the United States to Mexican drug cartels. 

And when the Obama administration was caught supplying over 2,000 firearms to Mexican drug cartels under the guise of “Fast and Furious,” Obama insisted that operation had begun under President George W. Bush, which is not true. 

Most of the so-called “mainstream” media have always been a willing tool for the gun-prohibition lobbies, but Bloomberg is even more powerful: He is the media. Bloomberg Media is a vast conglomerate with 2,300 employees who produce, publish and broadcast news worldwide. The Bloomberg content is carried not only in Michael Bloomberg’s own publication, but is republished in newspapers and other media all over the nation.

Simply put, in terms of money and lobbyists, the gun-prohibition lobby is stronger than ever. And with the gun-prohibition programs that Obama has publically advocated during his entire career, the United States now has the most anti-gun president in its history. Now, the president is immune from any electoral worries about pro-rights voters. Remember, just last year Obama promised Russia’s Dmitry Medvedev more “flexibility” about weakening U.S. missile defenses once the election was over. That flexibility will surely extend to gun restrictions.

Four years from now, will the Second Amendment be mostly intact, or will it be a crippled relic of President Barack Obama's promise to “fundamentally transform” America? If the Second Amendment does survive, it will only be because NRA Members and friends of liberty politically and socially mobilized like never before.  

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NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.