Constitutional law expert Adam Freedman tells Newsmax that some of the new gun control proposals put forth by the Obama administration could constitute a “separation of powers violation.”
And he says he expects legal challenges to the new gun control law passed in New York State this week, which is on “shaky Second Amendment grounds.”
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Freedman is the author of the new book “The Naked Constitution: What the Founders Said and Why it Still Matters.” His earlier works include the book “Party of the First Part: The Curious World of Legalese,” and his commentary has appeared in The New York Times, Wall Street Journal, National Review, and other publications.
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In an exclusive interview with Newsmax TV, Freedman comments on the gun control proposals unveiled by the White House on Wednesday: “I do have a number of concerns about the proposals. I have concerns about the Second Amendment, which is the right to keep and bear arms, and also the separation of powers.
“There’s another concern here, which is federalism. The issues that we’re dealing with today — gun violence, crimes, school safety — are all very important, but under the Constitution, these are really issues for the state governments to deal with. And I’m very concerned that there seems to be an increasing acceptance that the federal government should take the lead on these issues.”
Obama on Wednesday signed 23 executive on gun control, circumventing Congress. Freedman says he is “concerned about separation of powers here because this is a president who likes to push the envelope when it comes to using executive orders.
“Some of the proposed executive orders seem very harmless, things like raising awareness of gun safety and starting a national dialogue on mental health. These don’t really present an issue.
“But there are some vaguely worded orders in the president’s list of proposals. For example, to mandate further information sharing among federal agencies for the federal gun database, and there are some instances where Congress has specifically prohibited the president from doing that, from reallocating federal resources beyond what Congress has appropriated. So if that’s the way that that executive order gets interpreted, by trying to get around Congress’ prohibition, then I think you really have a separation of powers violation.”
One executive order would have doctors across the country playing a key role in the president’s gun control initiative, by authorizing them to ask what type and how many guns patients have at home.
The order is “a matter of some concern but it is not in itself illegal, because as I read it, these orders simply say that federal law itself doesn’t prohibit a physician from inquiring about guns in the home or reporting to authorities actual threats of violence,” Freedman says.
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“It doesn’t mandate that the questions be asked or that the reports be made.”
But he adds: “I’m certainly concerned, looking forward, that what the president is trying to do is set the stage for a broader federal database that would include otherwise private information about conversations between physicians and their patients. That’s something we need to look out for in the future.”
Earlier in the week former Attorney General Edwin Meese told Newsmax that, depending on what executive orders he issued, the president risked impeachment.
Asked about the likelihood Obama would actually get impeached, Freedman responds: “The likelihood is zero. I’m no great fan of President Obama but the standard for impeachment is very high, high crimes or misdemeanors, and I don’t think any of this rises to that level.
“Of course, Attorney General Meese didn’t know what the proposals would be when he made that speculation, and certainly had the president ordered by executive order, for example, a massive confiscation of guns, similar to what was done in Australia a few years ago, I think you’d be possibly skating on thin ice in terms of impeachment.”
The president on Wednesday announced his push for a new assault weapons ban. A bill from Sen. Dianne Feinstein would basically outlaw semiautomatic guns with magazines that can hold more than 10 rounds.
Asked if this would infringe upon the Second Amendment as gun proponents say, Freedman tells Newsmax: “It’s not clear from the White House’s statement that what they’re doing is going to back the Feinstein bill. But if that’s what the president means, because he says he wants to reenact and strengthen the assault weapons ban that expired in 2004, if he means the Feinstein bill, then yes, I think we probably do have a Second Amendment problem here.
“The Second Amendment really prohibits in practice government at state or federal level prohibiting entire classes of weapons. Most weapons today are semiautomatic, which means that you don’t have to reload or re-cock the trigger in between each squeeze of the trigger. So the Feinstein bill gets closer and closer to a bill that really defines assault weapons in terms of virtually all semiautomatic weapons. They simply have to be capable of having the attachable clip and have just one other characteristic which Congress deems to be military in style.
“When you get to that point you’re really sweeping in the vast majority of weapons that law-abiding citizens use for their own self-protection.”
New York State on Tuesday passed sweeping limits on guns that include a ban on assault weapons.
“We can expect legal challenges” to parts of the law, says Freedman.
“There’s an obvious challenge to the way that the New York Assembly drafted the ammunition clip prohibition, because they set a maximum size of ammunition clips at seven rounds. The fact is such clips are almost unheard of. Ten rounds is the standard sort of minimum size for detachable clips, according to what I read.
“Even Sen. Feinstein’s proposed legislation, as I understand it, would preserve the ability to have 10-round clips. But New York by mandating a seven-round clip, which is a creature that basically doesn’t exist, is arguably just trying to outlaw semiautomatic weapons and there they’re on really shaky Second Amendment grounds.”
The constitutional law expert was also asked what the Founding Fathers had in mind when they crafted the Second Amendment.
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“I talk a lot about this in my book, ‘The Naked Constitution.’ Of course we don’t know exactly what the framers had in mind, we can’t read their minds, but we know what the text says. The text says that individuals have a right to keep and bear arms. They cannot be infringed on by the government and there is loads of historical research that the Supreme Court has gone through and endorsed that suggests that this was understood to allow individuals to keep and carry a personal gun for self-protection, for individual protection.
“There is also evidence that the framers viewed the maintenance of state militias as an important counterweight to a federal standing army, which was one of the innovations introduced by our Constitution, an innovation versus the earlier Articles of Confederation. So there’s certainly an anti-tyranny aspect in making sure that able-bodied residents can participate in their state militia.
“But the language is much broader than that and it goes to each individual’s right to possess a gun for protection, hunting, sports, recreation, all lawful pursuits.”
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