With Republicans in control in Washington D.C., many Second Amendment activists assumed their right to keep and bear arms was safe.
When one political party controls the House, Senate, and the presidency, the public expects the legislative and executive branches will work in tandem to further their party’s political goals. Known as ‘unified government’, the assumption is that legislation will be easier to pass when one party controls all the steps. Working in a unified government seems like it is worth the wait; indeed it doesn’t happen often. But deracinated from any principles, a unified government can be dangerous to our liberties.
In November 2016, the Republican Party achieved its goal of unified government. The last time this happened was in 2001 under George W. Bush. Though the 2016 election was unconventional in many ways, some evergreen political issues held voters’ attention.
The Second Amendment was an important issue for Republican voters. It was also important for Democrats, if for different reasons. Republican voters did not want to live under the specter of Hillary Clinton gun control after finishing out eight uneasy years fretting over an Obama White House.
The controversy and debate around firearms rose to a crescendo during Obama’s administration. A number of high profile public shootings and the rhetoric that followed caused many to believe that the Obama administration was a pen stroke away from a sweeping firearms ban.
Estimates of the number of mass shootings vary. Different groups use different metrics to define a mass shooting; some call it four deaths or more. Others say six or more. By at least one account, 14 mass shootings occurred during the Obama administration. After every one of those shootings, there were loud calls for further firearms regulations.
But whether attributable to Obama’s apathy, or gun owners’ tenacity, Obama left the laws on firearms largely as he found them. In some cases, he actually liberalized those laws.
Republicans were concerned that a Hillary Clinton presidency would create a political atmosphere inhospitable to the Second Amendment. This was not without some justification. Her husband, President Bill Clinton, passed a large package of gun control measures that lasted a decade until they were rescinded in 2004. Mr. Trump was seen as such a weak candidate that pundits and poll watchers thought not only that he would lose – badly – but that he would doom the down-ballot candidates. The result would be unified Democrat government control and at least one Supreme Court vacancy.
Anticipating the consequences of a Clinton victory, the NRA poured $36.3 million dollars into the 2016 election. A record-breaking amount for the nation’s oldest civil rights organization. When Trump pulled off an improbable victory and the House and Senate remained in Republican hands, advocates of the Second Amendment assumed firearms were safe. Some even speculated that all gun control laws could be on the chopping block.
Not only was the firearms community expecting rifle shot approaches to firearms legislation, such as treating suppressors (i.e. silencers) as any other firearms accessory, but they hoped to fulfill other longstanding goals.
Some of the most offensive gun control laws they wanted to repeal included:
- The 1986 Firearm Owners Protection Act made it illegal for any private citizen who is not an FFL/SOT, from owning a fully automatic weapon made after May 19, 1986.
- The Gun Control Act of 1968 created a complex, rigid, and expensive system of licensing requirements to sell firearms. It also created the nebulous “sporting purposes” standard for certain firearms.
- The 1934 National Firearms Act was the first really big federal push at gun control in the 20th It imposed regulations and taxes on certain automatic weapons, suppressors, short barreled rifles, and shotguns.
The firearms community and defenders of the Constitution anticipated that the Republican government would chip away at these and many other gun laws. To their surprise, the opposite seems to have happened.
President Trump’s negotiating style is unpredictable and erratic. His supporters argue that he is shrewdly employing a multi-tiered offensive against the D.C. establishment. His detractors think his views are malleable and he will take the advice of either the loudest or last voice in the room. The result for gun owners has been more talk about firearms freedom but nothing in the way of actual disentanglement of the network of laws that violate the Second Amendment.
In fact, there is the threat of even more invasive federal meddling with the right to keep and bear arms.
During a bipartisan meeting at the White House, members of Congress and the president discussed a new type of gun control called the Gun Confiscation Order. This law would allow a friend, family member, police officer, or attorneys general to petition a court to confiscate a person’s firearms on the premise that the individual might commit a violent action in the future.
Currently, six states allow for Gun Confiscation Orders and permit the petitioner and court to hold the hearing ex parte. This means that if a court agrees with the petitioner’s claims – alleging the potential for crimes that may occur in the future – the firearm owner receives no notice or opportunity to respond to the allegations at the initial court review. The owner learns about the confiscation order when the police and SWAT team arrive at his house to execute the order.
The exact criteria for determining that a person might commit a crime in the future is never explicitly stated in any of the Gun Control Orders that are currently on the books at the state level. This, of course, is because doctors and psychiatrists have no way of definitely predicting future criminal behavior.
In addition to the inequitable application and secret hearings, these orders violate Supreme Court standards. The Supreme Court in McDonald v. Chicago found that firearms are a fundamental right. As a matter of constitutional law, the federal government cannot infringe upon that fundamental right by appealing to such a low standard as the Gun Confiscation Order.
And yet, when President Trump brought Republicans and Democrats to the White House to discuss firearms and the Second Amendment, he chose to discuss the viability of federal Gun Confiscation Orders; a mechanism to enact the very thing firearm advocates feared under a Clinton presidency.
Vice President Pence raised the potential of Gun Confiscation Orders at the national level with some tailoring to allow due process so “no one’s rights are trampled.”
President Trump responded, “Mike, take the firearms first and then go to court…. Because a lot of time … it takes so long to go to court to get the due process procedures, I like taking the guns early.”
That is a Rubicon.
President Trump said something that not even President Obama had the temerity to say. He shared his personal preference to leapfrog over the Constitution, due process, and even legislation.
In a short, off-the-cuff comment, Trump endorsed Gun Confiscation Orders without any constitutional due process. Firearm owners and advocates cannot assume that their rights are safeguarded under the leadership of any political party.