Imprimis

The Second Amendment as an Expression of First Principles

Edward J. Erler
Co-author, The Founders on Citizenship and Immigration


Edward J. ErlerEdward J. Erler is professor emeritus of political science at California State University, San Bernardino. He earned his B.A. from San Jose State University and his M.A. and Ph.D. in government from the Claremont Graduate School. He has published numerous articles on constitutional topics in journals such as Interpretation, the Notre Dame Journal of Law, and the Harvard Journal of Law and Public Policy. He was a member of the California Advisory Commission on Civil Rights from 1988-2006 and served on the California Constitutional Revision Commission in 1996. He is the author of The American Polity and co‑author of The Founders on Citizenship and Immigration. This fall he is a visiting distinguished professor of politics at Hillsdale College.



The following is adapted from a lecture delivered on February 13, 2013, at Hillsdale College’s Kirby Center for Constitutional Studies and Citizenship in Washington, D.C.


In the current climate of public opinion, Congress will have little appetite for passing an assault gun ban. More likely, it will be satisfied with passing legislation aimed at gun trafficking and tightening background checks. We must remember, however, President Obama’s pledge: “If Congress won’t act then I will.” He has already issued 23 gun-related executive orders, and some of them are rather curious. One of them notes that there is nothing in the Affordable Care Act that prevents doctors from asking patients about guns in the home; another directs “the Centers for Disease Control to research the cause and prevention of gun violence.”

The President’s power to act through executive orders is as extensive as it is ill-defined. Congress routinely delegates power to executive branch agencies, and the courts accord great deference to agency rule-making powers, often interpreting ambiguous legislative language or even legislative silence as a delegation of power to the executive. Such delegation provokes fundamental questions concerning the separation of powers and the rule of law. Many have argued that it is the price we have to pay for the modern administrative state—that the separation of powers and the rule of law have been rendered superfluous by the development of this state. Some of the boldest proponents of this view confidently insist that the triumph of the administrative state has propelled us into a post-constitutional era where the Constitution no longer matters.

The Gun Control Act of 1968 gives the President the discretion to ban guns he deems not suitable for sporting purposes. Would the President be bold enough or reckless enough to issue an executive order banning the domestic manufacture and sale of assault rifles? Might he argue that these weapons have no possible civilian use and should be restricted to the military, and that his power as commander-in-chief authorizes him so to act? Or perhaps sometime in the near future he will receive a report from the Centers for Disease Control that gun violence has become a national health epidemic, with a recommendation that he declare a national health emergency and order the confiscation of all assault weapons. Congress could pass legislation to defeat such an executive order; but could a divided Congress muster the votes?—and in any case, the President could resort to his veto power. Individuals would have resort to the courts; but as of yet, we have had no ruling that assault weapons are not one of the exceptions that can be banned or regulated under Heller. We could make the case that assault rifles are useful for self-defense and home defense; but could we make the case that they are essential? Would the courts hold that the government had to demonstrate a compelling interest for a ban on assault rifles, as it almost certainly would have to do if handguns were at issue?

Are these simply wild speculations? Perhaps—probably! But they are part of the duty we have as citizens to engage in a frequent recurrence to first principles.