By Jon Dougherty
One reason why so many Republican lawmakers are opposed to President Donald Trump’s declaration of a national emergency along the southwest border in order secure funds to build a border wall is that they fear a Democrat president down the road will use the authority to declare gun violence an “emergency.”
But a new analysis of political, legal, and constitutional aspects of such a declaration reveals that any such threat is empty.
For one thing, notes Graham Noble at LibertyNation.com, the right to keep and bear arms regardless of any ’emergency’ is guaranteed by the Second Amendment. Any attempt by a Democratic president to ban, confiscate, or otherwise “infringe” upon that right is simply unconstitutional.
Now, he admits, Democratic presidents of late are prone to constitutional violations; Barack Obama simply imposed the Deferred Action on Childhood Arrivals (DACA) program on the country as an immigration policy in direct violation of existing immigration laws and got away with it. But in that case, an action which was clearly an impeachable offense was allowed to stand thanks to a politicized, partisan Congress.
As Noble writes:
As the president himself pointed out during his CPAC address, he is not setting any precedent because a future Democratic president would invoke national emergency powers if they saw fit to do so, regardless of what Trump does in the present. How quickly people forget that the most stunning example – in recent years – of a president completely bypassing Congress to take action on a major issue of national concern was Barack Obama’s creation of the DACA program. In that instance, the president simply ignored Congress, commandeered its authority to legislate, and changed federal law. Obama did not even declare a national emergency to do so and Congress put up no fight.
“The idea, then, that Trump’s national emergency declaration will embolden future presidents to use the same tactic is nonsense. Congressional Democrats have shown that they are willing to simply cede unlimited authority to a president, should they choose to do so,” he added.
Noble notes further that Democrats have only floated the idea of a gun violence national emergency; they haven’t discussed publicly what one would look like, what form it would take, and — importantly — what ‘measures’ a Democratic president would take to ‘address’ it.
“The truth is, the threat is empty,” he writes. “There is no possible legal basis for a president to unilaterally alter federal firearms laws. National emergency statutes do not grant any authority to impose new laws or to alter existing ones.”
A declaration would even limit a president’s authority, Noble writes, adding that previous legislation explicitly forbids certain actions regarding guns during an emergency:
In 2006, the 109th Congress passed the Disaster Recovery Personal Protection Act which prohibits the confiscation – either permanently or temporarily – of privately-owned firearms during times of national emergency. It also prohibits the establishment of a gun registry and the imposition of restrictions on the carrying of firearms. This law does not, of course, override any existing federal, state or local firearms regulations already on the books, but it explicitly prevents a national emergency declaration being used to justify the creation of new restrictions.
The blame for the border crisis rests squarely with the same people most opposed to POTUS Trump’s declaration: Lawmakers. Democrats and Republicans have repeatedly failed to assist the Executive Branch in securing the border, creating the humanitarian disaster we now have.
But more importantly, Noble points out, nothing in the president’s declaration alters any laws or inhibits any constitutional rights: It merely spends funds that Congress has already appropriated, and not for any specific purpose.
Noble also writes that what actually constitutes a national emergency can be subjective. Illegal immigration has been a problem for decades so why is it an emergency now? Because of the tremendous influx of migrants along our southwestern border — to the extent that our existing resources to deal with the problem are being overwhelmed (and don’t look now but we’re having an increase in illegal crossings from Canada as well).
“Clearly, a future Democratic president would have no credible basis for declaring gun violence a national emergency and no legal authority to use such a declaration to enact any additional gun restrictions,” writes Noble. “The threat is empty. Any future president who wants to deprive Americans of their Second Amendment rights will attempt to do so without invoking national emergency powers.”
- Follow Jon Dougherty on Twitter at @JonDougherty10