Biden: W.H. readies 19 executive actions on guns

[happyslug]

82. What are the possible Executive Actions?

Last edited Wed Jan 16, 2013, 11:06 AM - Edit history (1)

Restrictions on purchasing, possession or transferring of Weapons and Magazines will NOT be among the actions, for the simple reasons those are covered by Statutes passed by Congress, and an Executive Order can Clarify a statute but can NOT over turn a statute. I suspect the same for large capacity magazines, beyond what the President can do in an Executive Order.

After I wrote the above, I thought of a way around those problems, using the Second Amendment to do so. While an Executive Order can only define what is covered by a Statute or other law, not change the underlying law, that power to define can be powerful. Under Federal Law, every male between the ages of 18 and 45 is a member of the Militia along with any woman in the National Guard. The Militia is divided into two classes, the National Guard and the "Reserve Militia" which is every male NOT in the Army or the National Guard who are between the ages of 18 and 45.

Obama could base an Executive Order on this law, and defined what weapons the Reserve Militia is to have on hand. Under the wording of the Second Amendment the Militia can be "Regulated" and the President can do this by Executive Order for Congress has NOT address how the Reserve Militia is to be armed, in case the Reserve Militia needs to be called up for service in an emergency (Which is the only time it would be called into service).

Any regulations issued by Executive Order has to be on its face "Reasonable" (i.e. going back to the Militia Act of 1795 and to use the weapons defined under that Act namely the a .69 Caliber Musket would NOT be reasonable given modern combat conditions), but the regulation could be that the Militia arms itself with Mauser Bolt actions in 7.62x51 NATO on the grounds that given the limited ability to re-supply Reserve Militia units in time of combat, a Bolt Action Rifle would provide the maximum effective fire power within the limitations of the ability of the Federal Government to supply Militia personnel in the typical situation when the members of the Reserve Militia would be called into service.

Studies have shown when Ammunition is restricted, the slower fire power of bolt actions rifles provide effective fire power for a longer time period then automatic weapons. Today, in combat fire fights the greater fire power of Automatic Weapons over power units armed with bolt action rifles, until the units with Automatic Weapons run out of ammunition. Most armies make sure they have plenty of ammunition for their troops thus they use Automatic Weapons, but Obama can point out the Reserve Militia is to be used in emergency situations, which by definition will be situations with tight ammunition supplies, thus the superior fire power of Automatics is overcome by such weapons greater use of ammunition and such weapons inferior range and power of its ammunition.

Thus Obama can "Flush out" the Reserve Militia clause by Executive Order that includes that members of the Reserve Militia be armed with 7.62 Mauser bolt action rifles AND banning the sale of Semi-Automatic Weapons on the grounds the Militia has to be armed with Mauser Bolt Action rifles and the sale of such Semi-Automatic Weapons interferes with HOW the President wants the Reserve Militia to be armed.

Such a ban could survive constitutional challenge, for the President is the Commander in Chief and in absence of the law to the contrary, can form up the Army (including the Militia) as he sees fit, as long as he leaves the States pick their officers (A Constitutional Requirement). The above would just be the President informing the Reserve Militia what weapons he wants them to have and why. The actual call up of the Reserve Militia and its actual formation can be dismissed in this Executive Order as premature (And cite Alexander Hamilton in his Federalist Papers as to how to form up the Militia, Hamilton wanted two types of Militia, basically what we call the National Guard and a Reserve militia which he would only call up once a year to see if they are adequately armed and then sent home till they are needed, Hamilton considered it a waste of resources to arm and train every person in the Militia, but valued the Militia as a pool to be called up when needed and trained at that time. Hamilton's position as to the Reserve Militia could be cited as WHY Obama sees the need to standardize on bolt action rifles but no further action as to the Reserve Militia).

Furthermore, Obama in the Executive Order could BAN any other weapon till the Reserve Militia has fully armed itself to his specification. The ban can be on weapons the President finds interferes with Reserve Militia members from obtaining the Weapon the President wants the Reserve Militia to have. i.e. by setting what the Reserve Militia is to have and making the requirement something most people can comply with (and have military reasons for its adoption), gives the President the Power to ban the sale of anything that interferes with arming the Reserve Militia as he sees fit (and remember, the Executive Order states what a person has to have, which is what Congress did in the Militia Act of 1795, but does NOT provide funds for such weapons, just like what Congress did in the Militia Act of 1795, nor require people to get that weapon if they can NOT afford it). In many ways this is important, for by following what Congress did in the Militia Act of 1795, Obama is showing all he is doing is issuing a regulation, as Congress did in 1795, not a ban.

Now, Congress did NOT ban other weapons in the 1795 Militia Act, but Obama can make that extra step on the grounds to many people are buying less effective Semi-automatic Weapons (Remember we are talking about such weapons being less effective given the situation where the Reserve Militia would be called out). In simple terms, the ban on Semi-Automatics can be cited as needed to make sure the Reserve Militia has the best equipment the Reserve Militia needs for its expected combat role. That weapon being a Bolt Action Rifle. These Semi-Automatics will bring with them to many issues of re-supply of Ammunition, and parts to be tolerated and the mere existence of them in the Market Place causes excessive interference with the plan to better Regulate the Reserve Militia.

Notice, none of the above changes underlying law, it is just the President exercising his authority as Commander In Chief to form up and "regulate" the Reserve Militia and flushing out how the "Reserve Militia" is to be armed. The ban on Semi-automatic weapons is to encourage purchase of Mauser bolt Actions for that is the Weapon the President wants the Reserve Militia to have (and all Obama needs to cite is that the US has to be prepared for a Terrorist Attack anywhere in the US, and attack that would require the Reserve Militia to be called out till other forces can arrive). Defining what weapon the Militia shall have follows what Congress did in 1795 in the Militia Act of 1795 (The Militia Act of 1795 remained on the books till 1903. In 1903 the wording we see today was adopted, women were added in the 1970s as to the National Guard.

Now, I admit the above would be a stretch of the law, but it would permit the President to ban the sale of Semi-automatic Weapons by Executive Order, for the sale of such weapons interferes with people buying Mauser Bolt Actions Rifles so they can meet the legal requirement of Obama as to the Reserve Militia. The President would also have to set up standards for the proposed weapon, but the Mauser Bolt Action is well known and standards could be quickly set up. Remember we are NOT calling for the Executive Order to actually issue or require the Reserve Militia to have such a Mauser Bolt Action Rifle, but if someone says he wants to be armed as part of the US Militia the weapon he is to obtain in a Mauser Bolt Action Rifle.

By standardizing on the Mauser Bolt Action, as the Weapon of the Reserve Militia, the President could then ban the sale of any semi-automatic weapon as a sale that interferes with his plan on how the Reserve Militia is to be armed. In simple terms, the President's REGULATION of the Reserve Militia can NOT be followed if Semi-automatic Weapons are permitted to be sold. Thus the sale of such weapons interferes with the President's regulation of the Reserve Militia, something he is the Commander in Chief of and thus up to his sole discretion absence any Congressional action. If the President would emphasis the need to better regulate the Reserve Militia, and play down the actual ban for any other reason, I can see the Courts upholding such an Executive Order banning Semi-automatic Weapons for such a ban would be within his powers as Commander In Chief of the Arm Forces of the US.

Side note: Before you go on a tear and complain that the Bolt Action Rifle has no place in Modern Warfare, except as a sniper rifle, let me make the following observation. The bolt action rifle (The Mauser is considered the best, through the British SMLE had superior fire power, but at reduce range and power of the Round) is superior to automatic rifles in range and reliability (In fact every country that converted from a Bolt Action to an Automatic Rifle had to reduce reliability and range requirements to make the conversion), and is superior to Machine Guns and Mortars in maneuverability. The Automatic Rifle (and the assault Rifle) did not replace the bolt action rifle, it took the Automatic Rifle, the Squad Automatic Weapon, the General Purpose Machine Gun and the Mortar to replace the bolt action rifle. Together the Automatic Rifle, the Squad Automatic Weapon, the General Purpose Machine Gun and the Mortar provides over all better combat performance then a unit armed with Bolt Action Rifles, but a unit armed with only Bolt Action Rifle is superior to any unit armed with only Automatic Rifles OR armed only with Squad Automatic Weapons, or a unit armed only with General Purpose Machine Guns or a units armed only with Mortars. It took all four, the Automatic Rifle, the Squad Automatic Weapon, the General Purpose Machine Gun and the Mortar to replace the bolt action rifle. Thus Obama can point out in his Executive Order that given the expense of Squad Automatic Weapons, General Purpose Machine Guns and Mortars he can NOT expect the Militia to purchase them and thus must issue a regulations that the Reserve Militia must arm themselves with bolt action rifles as the best weapon for such units.

Side note: National Guard:
The legal foundation of the National Guard prior to 1903 was on weak constitutional grounds, for the National Guard prior to 1903 did not fit the definitions of militia as used in the 1795 Militia Act. The wording of the Militia Act of 1795 is important, for the courts have long given great weight to terms and words used in laws passed by the early Congresses when those same terms and words are used in the Bill of Rights and the US Constitution. Thus the term Militia has been interpreted by the US Supreme Court to include every male over the age of 18. On the other hand what is the Militia, as that word is used in the US Constitution, has never been defined by the US Supreme Court, but the Militia Act is one source to such a definition.

The problem for the National Guard prior to 1903 was its formation was more like Regular Troops then the definition of Militia used in the Militia Act of 1795 (The act in force prior to 1903). On the other hand the Courts wanted the National Guard to be "Constitutional" given the use of the National Guard in various civil disturbances of the late 1800s. Thus when the issue of the National Guard Constitutionality came up, the Courts kept ruling it was Militia, even through it did NOT meet the definition of Militia under the only Federal Militia Act in existence, the 1795 Militia Act.

The Militia Act of 1795 order every state to organized its "Free men" (which by the terms of the 13th amendment meant all men) into Militia Units. The men in these units were unpaid, had to bring their own ,69 caliber musket, they own 20 rounds of ammunition, their own tents and sleeping gear, they own clothes, and their own food for 20 days.

Please compare that to Regular Army recruits, who were PAID, were ISSUED their ,69 Caliber Musket, issued whatever Ammunition they had to use, issued their tents and sleeping gear, issued a uniform, and feed by their Units from money from the Federal Government.

Yes, the Regular Army were full timers, while the Militia only had to show up a drill once a month, but the National Guard Units, especially after the Civil War, as to their enlisted ranks, paid them on drill days, issued them a weapon and ammunition, issued tents and sleeping gear, issued uniforms and feed the enlistees for free.

Thus, except for the fact the National Guard was and are "part time", troops in the National Guard meet and meets the same requirements of Regular US Troops. Thus the argument that the National Guard are "State Troops" not "Militia" as those terms are used in the US Constitution.

Now, ignoring the Constitution when the Courts don't like it is not unusual. The Red Scare of the 1940s was noted by the Supreme Court avoiding ruling on any issue related to the Red Scare till it was over. In the impeachment of President Andrew Johnson, the Act he was impeached for violating, was ruled to be unconstitutional 20 years later, but during that Constitutional Crisis the Courts avoided the issue. And lets not forget Plessy vs Ferguson and the whole Separate but Equal ruling from 1898 to 1954. Thus the Courts in the late 1800s ignored the law and came up with rationales to show they were following the Constitution, when they were not.

In the period from the US Civil War to 1903, the courts wanted the National Guard to be constitutional so by ruling the National Guard was the Militia, for that is what each state called the National Guard, made the National Guard Militia even through if did NOT meet the requirement of only Federal Law in effective as to the Militia at that time. This included ignoring those parts of the Federal Constitution given exclusive power of the Militia to the Federal Government.

The other problem is what are "State Troops" as that term is used in the US Constitution? The problem with the later definition is such "State Troops" were BANNED by the Federal Constitution UNLESS approved by Congress, and Congress never gave such approval as to the National Guard till the Dick Act of 1903.

Now, since 1903 and Congress adoption of the State's National Guard Units, the National Guard is clearly constitutional today, for if the NAtional Guard is either Militia and as such constitutional, or the National Guard are State Troops, and given that Congress has authorize the existence of the National Guard units in the states, the National Guard is constitutional even if the National Guard are State Troops, as that terms in used in the US Constitution.

The National Guard being unconstitutional only relates to the period of its existence prior to 1903 and subsequent to the US Civil War. The Traditional American Militia went into slow decline after the War of 1812. To this slow decline some people formed Special Military Units as Clubs so they could participate in a more professional military organization then the Militia was becoming after 1820. Some of these clubs pre-date the American Revolution, but most formed after about 1820 as the Militia was deemed no longer a priority given that the British and Native Americans were NO longer active in the Ohio Valley.

One such Club/Unit acted as an Honor Guard for Lafayette when he returned to the US via New York City in the 1830s. That unit, in his honor adopted the name National Guard, the name of Lafayette forces during the French Revolution. Other Clubs soon adopted the same name to differentiate themselves from the rapidly deteriorating Militia. These Clubs were the basis for many of the First Units called into Active Service during the Mexican War, the Civil War and the Spanish American War.

After the Civil War, the States started to take view that these units, which had started as clubs but due to action in the Civil War, saw themselves as a Reserve Army unit, as State Units. The Traditional Militia had all but disappeared by the time of the Civil War, it existed on paper in most states, but that is about all. The States used the National Guard as its units during the Civil War and with the end of the Civil War, many state raised units were retained by the States as National Guard units. The States called them Militia for Congress did NOT agree to their formation till 1903 and in fact retain the Militia Act of 1795 till 1903 (and these units did NOT meet the requirements of that Act) These units retained much of their "Club" organization, including Officers going through Officer's Training at the State Expense, but NOT having a duty to serve once the training was done (again to get around the problems of Congress refusing to do anything as to the National Guard and the States wanting them to handle Civil Disturbances).

Now, the General Strike of 1877 lead to some changes in the National Guard, the States all improved them, including increase money to them to pay enlistees (Some of the earliest cases as to the National Guard being Militia were AFTER the General Strike, which the States had a problem containing even with the use of the State's National Guard).

After the General Strike of 1877, Congress even provided money to some National Guard units, but did NOT change the underlying Militia Law (Money to State National Guard Units to buy weapons had come from Congress as early as the 1830s, but no change to the underlying Federal Militia Act). After the General Strike, the National Guard and the Regular Army fought in the Chambers of Congress on which would be better in handle something like the General Strike, the National Guard, having a lot of members who either were Congressmen, relatives to Congressmen, or important States Officials that Congressmen needed support from to get re-elected, won. This related to increase funding, but no change in the law. Theodore Roosevelt finally had Congress change the Militia Act to Include the National Guard (and to form up the National Guard Units into a Army Reserve Type formation) with the Dick Act of 1903.