Obama's Gun Rules and the Constitution
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Supporters of Second Amendment rights should have little difficulty challenging President Obama’s new executive orders to restrict gun sales. There should be no problems for plaintiffs to enter federal court. The best suited plaintiff is someone who may occasionally sell a gun, but is not really running a retail business: a hobbyist, for example, who buys parts and makes custom guns and then sells them at his local shooting club to friends.
Such a case would prompt not just a good challenge to the scope of the President’s authority to interpret the law, on which the Supreme Court has been signaling that it may shift away from deference to the executive branch, but also the scope of the Second Amendment and the federal government’s regulatory powers. In Gonzales v. Raich, the Court decided 6-3 that small sales of marijuana still fell within the Commerce Clause powers of the federal government. Obama’s efforts to extend the reach of the regulatory state to those who sell only a small number of guns a year may prompt the courts to re-examine and narrow Raich, especially because of the presence of the constitutional right to bear arms. In his regulatory overreaction to recent shootings, Obama may begin the erosion of the powers of his treasured welfare state.
Emanuel S. Heller Professor of Law, University of California at Berkeley; Senior Research Fellow, School of Civic Leadership, Civitas Institute, University of Texas at Austin; Nonresident Senior Fellow, American Enterprise Institute
John Yoo is the Emanuel Heller Professor of Law. He is also Distinguished Visiting Scholar, School of Civic Leadership and Senior Research Fellow, Civitas Institute, at the University of Texas at Austin. He is also a Nonresident Senior Fellow at the American Enterprise Institute.
His most recent book, The Politically Incorrect Guide to the Supreme Court, co-authored with Robert Delahunty, was published in 2023. Professor Yoo’s other books include Defender-in-Chief: Trump’s Fight for Presidential Power; Striking Power: How Cyber, Robots, and Space Weapons Change the Rules for War, Point of Attack: Preventive War, International Law, and Global Welfare, and Crisis and Command: A History of Executive Power from George Washington to George Bush.
Professor Yoo has published more than 100 articles in academic journals on subjects including national security, constitutional law, international law, and the Supreme Court. He also regularly contributes to the editorial pages of the Wall Street Journal, New York Times, Washington Post, Los Angeles Times, and National Review, among others.
Professor Yoo has served in all three branches of government. He was an official in the U.S. Department of Justice, where he worked on national security and terrorism issues after the 9/11 attacks. He served as general counsel of the U.S. Senate Judiciary Committee. He has been a law clerk for Supreme Court Justice Clarence Thomas and federal appeals Judge Laurence Silberman. He has been a visiting professor at Seoul National University in South Korea, the Interdisciplinary Center in Israel, Keio University in Japan, Trento University in Italy, the University of Chicago, and the Free University of Amsterdam.
Professor Yoo supervises the Public Law and Policy Program and the California Constitution Center. He also serves on the boards of the Pacific Legal Foundation, the Federalist Society’s Separation of Powers and Federalism Division, the Universidad Cientifica del Sur Law School, and the Asia-Pacific Law Institute at Seoul National University. He is a winner of the Federalist Society’s Paul Bator award and been the Edwin Meese III Originalism Lecturer at the Heritage Foundation.
Professor Yoo graduated from Yale Law School and summa cum laude from Harvard College.