New executive action: Smoking gun, or firing blanks?


January 8, 2016

On Tuesday, Jan. 4, President Barack Obama described his executive action on new gun-control measures, focusing on background checks and tracking weapons sales. News organizations began counting down to the Thursday night town hall on the measures almost immediately. The issue is a hot topic, and divisive in American politics: How much control is too much?

Erik Luna, professor of criminal law at the ASU Sandra Day O'Connor College of Law and resident expert on the Second Amendment, tackles some of the questions at forefront of mind.  Download Full Image

Question: The question on everyone’s mind: Is President Obama stretching the limits of executive action?

Answer: The actions have been pitched as clarifying and enforcing current law, not crafting new law. But, of course, the interpretation of existing provisions can be so unfaithful to the text and context of a statutory scheme as to have the effect of new “law.”  

What can be said is the following: 

1. We should expect gun-rights advocates to litigate every legal issue raised by President Obama’s actions. Some pressure points will include the Administration’s interpretation of who qualifies as a gun dealer (“engaged in the business” of dealing in firearms) for purposes of federal law.

2. America’s chief executives during this millennium, Presidents Bush and Obama, have opened new vistas of presidential power. Both adopted broad interpretations of their authority in counterterrorism efforts. In addition, President Bush had the habit of using “signing statements” to assert his right to ignore or not enforce laws enacted by Congress, while President Obama’s refusal to take action against illegal immigrants under his DACA policy (Deferred Action for Childhood Arrivals) stretched the traditional understanding of “prosecutorial discretion.” In the end, whether someone agrees or disagrees with a particular executive action will likely reflect their normative commitments (e.g., gun rights vs. gun control, someone’s stance on immigration policy, etc.). But the precedent set by these (in)actions is unnerving for those concerned about constitutional structure, the limits of the president’s authority, and his duty to “take Care that the Laws be faithfully executed.”   

Q: What’s the legal culture around this issue like? Does the SCOTUS’ 2010 ruling on gun ownership make these new restrictions more difficult?

A: When I heard President Obama say the following — “I believe in the Second Amendment. It is there, written on the paper. It guarantees a right to bear arms.” — I almost spit out my coffee. I cannot imagine that an unreconstructed political liberal like the president actually believes in the Second Amendment, by which I mean not only the text of the constitutional provision but also its current interpretation by the Supreme Court. In District of Columbia v. Heller (2010), the Court ruled that the Second Amendment conferred an individual right to keep and bear arms, rather than a collective (and thus largely non-litigable) right to possess and carry a firearm in connection with militia service. In turn, the Court in McDonald v. Chicago (2010) held that the Second Amendment was fully applicable to the states. If you think that President Obama “believes in” (i.e., supported) either of these rulings, I’ve got a bridge I’d like to sell you.

Nonetheless, it seems unlikely that the president’s actions (at least as they have been outlined to this point) would be deemed by the courts to violate the Second Amendment. The decisions in "Heller" and "McDonald" concerned absolute bans on handguns possessed for self-defense in the home — an issue which is not obviously implicated by the president’s actions — and the Supreme Court went out of the way to emphasize the limited nature of its opinions.

Q: Politically, it has been historically noted that gun control has motivated those on the anti-control side more than pro-control side. Will this deprive the president and others of the political capital to enact tougher regulations?

A: It’s not clear that the president even has the capital to effect the plan he outlined, let alone genuinely tough gun restrictions, at least to the extent that any critical component depends on congressional action. Apparently, for example, President Obama will request that Congress fund the hiring of new government employees to conduct gun-related investigations. It would not surprise me if a significant number of federal lawmakers, perhaps a majority, reject the president’s request.

Q: Arizona is among the states with comparatively more relaxed laws, including concealed carry without requiring a permit. Will Arizonans feel much of an effect from these changes?

A: Probably not, unless the president’s actions portend a vast increase in federal enforcement activity in Arizona. 

 
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Springing into quirky courses

Looking for a quirky spring semester course? ASU has you covered.
January 8, 2016

ASU offers classes for a wide range of interests as new semester gets under way

A new semester means a new crop of interesting courses at Arizona State University.

Perhaps that (bad) romance novel you received as a white elephant gift leads you to Arthurian Knights and Ladies (ENG 320) or Bad Romance Edges Glory Lady Gaga: Ideology of Otherness (ENG 394). Or maybe those many family holiday get-togethers have you contemplating God and the Problem of Suffering (MAS 598) or — if your holiday meals are of the less dramatic type — Philosophy of Happiness (PHI 326).

Spring is full of commemorative months. In time for Women’s History Month in March, students can learn about the Gender, Science and Technology (WST 340) or attend a women’s studies course like Desperate Housewives (WSTWST stands for Women’s Studies, by the way, not Wisteria Lane. 374) and learn about the visualization of housewives in popular culture — not just on Wisteria Lane. Students can also double-down on American culture, history and society with American Style (AMS 201).

More of a mad-scientist type? Other ASU courses cater to STEMSTEM stands for science, technology, engineering and math students, such as Design of Aerospace Structures (AEE 426) and Space Vehicle Dynamics/Control (AEE 462) or the Essentials of Astrobiology: Exploration for Life in the Universe (SES 311). While Ecology and Natural History of the Sonoran Desert (SCN 301) will prepare students ahead of the springtime blooming season, maybe their interest lies less in flora and more in fauna, with such courses as the HoneyBee Biology and Apiculture (BIO 494) and Equine Therapy (PRM 494). 

Many students are unaware that language tracks at ASU focus on culture as much as language. Fans of the movie “300” can get a more in-depth understanding of Greece and Rome at War (GRK 360). Students can learn more about Rumpelstiltskin and the Frog Prince in the German course Fairy Tales (GER 441). They can learn about such cultural topics as gosa, an offering to spirits, in Korean Culture and Society (KOR 250), or explore the Arabic course Quran Text and Women (ARB 341).

And while a bit dark, students can prepare themselves for the far future with Death and Dying – Cross Cultural Perspective (ASB 353) as they prepare themselves for life after graduation.

These classes fit into the more than 300 academic programs and majors offered within the ASU knowledge enterprise. They are intellectually rigorous takes on a diverse array of topics that can help to develop the thinking skills that create adaptable master learners — and make learning a lot of fun.

Deanna Dent

Photographer , ASU News

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