Regular Fox News guest Jay Sekulow repeated the false accusation that President Obama will issue illegal executive orders that violate Second Amendment rights, before admitting he doesn't actually know what the administration will propose.
On the January 10 edition of America Live, host Megyn Kelly thwarted Sekulow's attempt to recycle the right-wing claim that forthcoming gun violence prevention proposals resulting from Vice President Biden's recent efforts will infringe on Second Amendment rights. When Kelly asked him how he reconciled his allegation with the fact that the first President Bush installed a ban on imports of certain types of assault weapons by executive order, Sekulow tried to explain that although there are many constitutional strategies Obama could pursue, Obama will push the illegal one. Still, Sekulow admitted he has no proof to back up this claim. From the interview:
KELLY: Jay, let me start with you on this. The research that we've looked at suggests that he's got some leeway to curtail some gun rights by executive order if he so chooses. What say you on it?
SEKULOW: I don't think so.
SEKULOW: The Second Amendment rights have been pretty clear and I think the idea that you can utilize an executive order to implement restrictions on that right not through a legislative process, by just executive fiat, I don't think that's going to work constitutionally. So I think that would be a very difficult challenge. It's different if you have legislation passed by Congress that could somehow regulate this and then the White House would simply, you know, issue regulations off them. Here there's no regulation...
KELLY: Wait, wait, let me jump in, let me jump in. That may be the difference that we're talking about because I looked back. The research suggested that when George H. W. Bush was president back in 1989, he used executive order to ban the import of assault weapons using his powers under the Gun Control Act of 1968 that stipulated that legal rifles had to be suitable for sporting purposes. So he did it that way using this 1968 gun control act law. But, you know, it begs the question, could Barack Obama do the same thing?
SEKULOW: I don't think -- that law -- we don't know what the president wants to do yet, but assuming it's going to be significant restrictions and restraints, I don't think you can use that law from 1968 to implement an executive order that would do anything other than comply with existing law. I mean, when you talk about what President George H.W. Bush did, he did use the '68 law, but we don't know what the president is proposing yet. But you listened to Vice President Biden yesterday and a kind of foreboding experience. We're talking about the Second Amendment to the United States Constitution here. Look, if it's the First Amendment the president can't simply say I don't like that provision anymore, I'm going to get an executive order, saying, you know, freedom of press, not so helpful, I'm not going to use it.
Sekulow was right when he said the President can't “implement an executive order that would do anything other than comply with existing law.” It is true: laws issued pursuant to other laws can't violate the law. However, the administration is not proposing any such action.
If an executive order to address gun violence is forthcoming, it will have ample precedent, as Kelly herself noted, and Sekulow later admitted. There are existing laws on the books that Obama could enforce -- the preferred form of “gun control” for the NRA and its allies -- that would satisfy Sekulow's rule of thumb that a President shouldn't “do anything” that violates existing law. From The New York Times' description of President Bush's executive action:
In the Presidential campaign last year Mr. Bush, a hunter and longtime member of the N.R.A., opposed to any bans on assault weapons. But a public outcry after a drifter armed with an AK-47 killed five schoolchildren in Stockton, Calif., in January helped convince others in the Administration that some limits were needed.
At the urging of William J. Bennett, the director of national drug control policy, the Administration suspended imports of certain types of semiautomatic assault rifles in March. The President expanded that temporary ban as part of a broader anticrime program that he announced in April, and said he would make it permanent for imported weapons that did not have a legitimate sporting use.
Sekulow's claim that executive orders in this area don't “work constitutionally” has no basis in law. District of Columbia v. Heller, the Supreme Court decision on the Second Amendment written by conservative Justice Antonin Scalia, explicitly held that reasonable gun violence prevention strategies are constitutional.
Prior to Sekulow's confession that right-wing media is speculating, it was possible that Biden told right-wing media Obama was planning on issuing an executive order, completely untethered to current legislation, which would reinstate the ban on individual possession of handguns in Chicago homes that Heller struck down.
But as Sekulow confirmed in his America Live appearance, this hasn't happened.