By Dan Gifford
The bad news for California gun owners is that even more pointless,
repetitive and repressive laws have been enacted in order to criminalize
and destroy the constitutional right of firearm ownership -- and that
situation is likely to worsen.
The vote count from the November 8th election indicates Democrats will
retain their super majority in both houses of the California state
Ya don't need a Weatherman to know which way that Sacramento wind will blow.
California Democrats are rabidly against Second Amendment rights. And
that means almost any anti Second Amendment legislative farce can and
probably will be packaged as law and added to those already on the books
in order to make firearm ownership close to impossible without becoming
a law breaker. Remember: There will always be a demand by those who hate
Second Amendment rights for another benignly named "gun safety" or
"crime prevention" law whose actual intention is to pave the path to
their stated goal of full registration and eventual confiscation.
Lest you forget, California's special SWAT gun confiscation police have
been fully funded by Sacramento and they are ready to kick in your door
when told to.
The good news is that President Donald Trump may honor his campaign
rhetoric to protect Second Amendment rights with judicial appointments
and direct administrative or executive action.
The caveat is "may honor his campaign rhetoric."
As I write this in late November, Trump has already backtracked on his
promise to have a special prosecutor investigate Hillary Clinton's email
server scandal and alleged quid pro quo, money laundering, corruption of
her Secretary of State position in conjunction with the Clinton
Foundation. In addition, Trump now says he has an “open mind” about the
Paris climate-change accord from which he vowed to withdraw the United
States and he says he's been "persuaded" that waterboarding terrorism
suspects isn't necessarily a good idea.
In Washington speak, Trump is "evolving" to the realities of his new
office and the limitations of its power in the face of what the late
Georgetown University professor Carroll Quigley -- Bill Clinton's world
affairs mentor -- openly said was a scheme of elite, super imperialists
to establish what some see as a defacto one world governance with open
borders. Perhaps that's why mention of Trump's vaunted wall along the
Mexican border has faded away.
Given Trump's changes of mind to date, is it unreasonable to extrapolate
an "evolution" in his promises to protect Second Amendment rights toward
the "reasonable" views of centralized world power elitists that look
more like the prohibitionist positions of Hillary Clinton, California
Lieutenant Governor Gavin Newsom or California U.S. Senator elect Kamala Harris?
You do the math.
However, if Trump does honor his many promises to protect Second
Amendment rights what can he actually do?
I am not a lawyer, but I'm told by those who are that Trump alone can do
quite a lot regarding federal laws.
Trump promised to eliminate "gun free zones" and the crazy quilt of
often contradictory federal laws. That would include federal laws that
ban gun carry in federal facilities like the Post Office, military bases
and other places because those statutes contain an exception for “the
lawful carrying of firearms or other dangerous weapons in a Federal
facility incident to hunting or other lawful purposes.”
"Other lawful purposes," I am told, would include concealed carry
State laws are another matter.
Credentialed legal gurus tell me the quashing of a state law by
Washington cannot be done by merely waving an executive order even if a
state law is believed to unconstitutionally limit the exercise of a
fundamental right. Concealed carry reciprocity is particularly being
talked-up in this regard.
The Supreme Court of a state, a federal court, the US Supreme Court or
the U.S. Congress can say that a state law is unconstitutional and void
it, but a president has no constitutional authority to do that on his own.
Here's what I am told President Trump can do.
Trump can ask a state to repeal its law:
If asking isn't enough, he can back up his words with a threat to
withhold federal money so long as it is money solely under executive
control to disburse.
Congressionally mandated funds are a different matter. They cannot be
withheld by a president unless Congress agrees. Richard Nixon discovered
that reality during the 1970s.
The resulting Impoundment Control Act of 1974 says a president can
withhold congressionally appropriated money but that he must obtain
approval from both the House of Representatives and the Senate within 45
days to keep doing so. Congress is not obligated to vote on a
presidential rescission request and generally has not. That means a
president has no real power to withhold congressionally mandated funds
However, Congress has notably backed presidential rescission requests
regarding speed limits and drinking ages to reduce fuel usage during the
Arab oil embargo and to lessen deaths attributable to speed and DUI.
Lowering fuel usage and DUIs were goals the public at large supported,
but how would the withholding of funds to knock unconstitutional gun
laws off the books play at a time when anti Second Amendment
activistsand reporters have falsely scared the public into believing
that prohibitive gun laws prevent gangs, terrorists and common criminals
from arming themselves?
Trump can sue:
A president may direct his Attorney General to ask either a state's
Supreme Court or the U.S. Supreme Court to review not just the
constitutionality of a particular law, he could also have his AG ask the
court to rule that any laws limiting Second Amendment rights pass a
strict scrutiny test.
At present, the famous District of Columbia v. Heller Supreme Court
ruling that the Second Amendment is an individual right makes
intermediate scrutiny the test for laws limiting Second Amendment
rights. That means a law "must further an important government interest
by means that are substantially related to that interest."
For a law to pass strict scrutiny, it must advance a "compelling
governmental interest," and must be restrictively written to achieve
that specific interest.
Would strict scrutiny automatically render California's many onerous
laws unconstitutional in court? That's doubtful. The backers of statues
that outlaw magazines holding more than ten rounds, or define certain
rifles as dangerous "assault weapons" or require gun registration or any
of the other laws waiting to entrap honest California firearm owners
believe those measures do serve a compelling governmental interest and
many of them, at least in California, may be judges.
That means the rulings will likely reflect the social and political
beliefs of those wearing the robes.
Trump can go to Congress:
Since Republicans hold a majority in both Houses, Congress is the place
to expect a Republican president who is serious about straightening out
the Second Amendment imbroglio of conflicting opinions and laws to start.
Congress can not only define what "the right to bear arms" means, what
"shall not be infringed" means and what "a well regulated militia" is,
it can condition funding to states that adhere to Congress' definitions.
Whether 535 Representatives and Senators can agree on those definitions
in a reasonable time is another matter.
It took Congress until 1998 to defund the federal Board of Tea Tasters
Richard Nixon had asked be disbanded in 1970 because it had a few
nitpicky defenders with political stroke.
The movement to neuter and nullify the Second Amendment has quite a lot
of defenders who have deep pockets, immediate media access and major
league political influence. What's more, those defenders have an awesome
stable of Hollywood creative talent with which to misrepresent any
rollback of Second Amendment infringements as a public safety crisis.
Personally, I'd like to see a Second Amendment that guarantees national
firearm carry in addition to prohibitions against registrations, gun
bans, magazine capacities, background checks or most any other
limitation save explosive ordnance.
As noted in previous articles, there was a time well into the 1990s when
most of the above restrictions did not exist or were local anomalies if
Public high schools had shooting team competion and students openly
carried their rifles on public transportation in the largest American
cities. The late US Supreme Court Justice Antonin Scalia remembered that
"I grew up at a time when people were not afraid of people with
firearms." Noting that as a youth in New York City he was part of a
rifle team at the school he attended. "I used to travel on the subway
from Queens to Manhattan with a rifle," he said. "Could you imagine
doing that today in New York City?"
"The attitude of people associating guns with nothing but crime, that is
what has to be changed," said Scalia.
That perception cannot be changed immediately by executive or
congressional action. But a President Trump who restores the Second to
its rightful place as the palladium of liberties of a republic, as
Justice Joseph Story noted it was, can go a long way toward freeing
firearm owners in California and other places from the tyrannical whims
of oppressive and unconstitutional laws they now face.
As former U.S Senator, Vice President and 1968 Democratic Party
presidential candidate Hubert Humphrey said: "[T]he right of citizens to
bear arms is just one more guarantee against arbitrary government, one
more safeguard against tyranny which now appears remote in America, but
which historically has proved to be always possible"
This column was first published in Firing Line magazine.
Dan Gifford is a national Emmy-winning, Oscar-nominated film producer
and former reporter for CNN, The MacNeil Lehrer News Hour and ABC News.