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.