Another Con Law discussion post…
The right to bear arms is a fundamental right that is deeply rooted in the foundation of our nation. The main debate over the past decade or so has concerned the issue of balancing this fundamental right with the health, safety, and well-being of citizens. On February 7th, President Trump signed an executive order that aims to safeguard 2nd Amendment rights. The order directs the Attorney General to “…examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies to assess any ongoing infringements of the Second Amendment rights of our citizens…” While there are 2nd Amendment arguments to consider, I am primarily concerned with the reach of this and how it fits in with the separation of powers.
One power of the executive branch is to “faithfully execute” laws. This is likely one argument the current administration is relying on to support this EO. No new laws are *technically* being created, the Attorney General is just receiving increased power to determine what laws infringe on protected rights. In all honesty, I understand that argument to a certain extent. However, I think this executive power pales in comparison to the power of analysis that is long-recognized to remain with the Supreme Court.
This EO specifically reviews laws implemented from January 2021 to January 2025, from former President Biden’s administration. A number of these laws were previously challenged, and some are still in the process of being analyzed in the courts. The Supreme Court has the sole responsibility to determine what laws and regulations are Constitutional. This EO, in several ways, is taking that power away from the Court. The Attorney General could prevent challenges from making it to the court system at the front-end, instead of relying on the Court’s ordained power to analyze how laws should apply. Current challenges awaiting decisions by the Court could be removed without a decision being rendered. The EO purports to not “impair or otherwise affect… the authority granted by law to an executive department, agency, or the head thereof…” but that’s exactly what it could do. The Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) was created by Congress. This EO allows the Attorney General to review their decisions and rulings, not the Supreme Court. It remains to be seen what actions the Attorney General will take, and how this conflict with judicial decision-making will play out.
Executive Order: https://www.whitehouse.gov/presidential-actions/2025/02/protecting-second-amendment-rights/
More on the order/current pending cases: https://www.swlaw.com/publication/president-trump-issues-executive-order-addressing-second-amendment-rights/
Further reading: https://www.wiley.law/alert-Executive-Order-Signals-Rollback-of-Biden-Era-Firearms-Regulations
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