Big Head Press

L. Neil Smith's
Number 706, January 20, 2013

Democrats, it's time you cleaned your house, time you
purged yourselves of the desire to control others.

Attribute to L. Neil Smith's The Libertarian Enterprise

Part 1 of this article is available at

Response and clarifications:

Two persons sent personal e-mails this week to address my comments regarding President Obama's eligibility. One of them took the perspective, "If he's ineligible, then everything he's done is invalid."

I wish it were that simple. Believe me, I really do.

First things first: for him to be declared ineligible, the evidence that he's ineligible will have to be broadly accepted. And he's not going to go easily; I suspect that even if the Supreme Court agreed that the evidence proves him ineligible, it would be a five-four vote along partisan lines, and he would fight that. He would probably even fight impeachment, and as noted in Part 1, impeachment requires more than half of his own caucus to agree—and with the public that voted for him in 2008 and again in 2012 likely proclaiming, "It's irrelevant," I doubt the impeachment forces would get the vote.

Even if he were then impeached on that basis, it's not clear that his actions would be automatically invalidated. First, if he is impeached on ineligibility, we're left with the image of Joe Biden becoming president, and Biden would reaffirm everything Obama has done. Second, there is no actual Constitutional mechanism for dealing with the actions of an ineligible—or rogue—President. Particularly with the Senate—and a large fraction of the House—fighting to retain the laws he has signed. I don't think it is at all clear how it would turn out.

Regardless of this series of articles, I fear that the political reality is that Obama will not be impeached (regardless of his origins) unless he is found to have foreign allegiances sufficient to sustain a charge of treason—and even then, only by convincing a majority of the members of his party in both Houses that failure to impeach makes them accessory to the charge. Then we're left with Biden replacing him, unless Biden is also found guilty. Then, John Boehner becomes President—which prospect, frankly, thrills me only by comparison.

Grounds for Impeachment for Violation of the Second and Other Amendments

The bulk of today's article will examine the twenty-three executive actions taken this week to advance the cause of "gun control." Let me note that, as Obama's agent in developing these proposals, if Obama can be impeached on these grounds, then Biden should be impeached concurrently.

The President's "Plan" can be downloaded from This document contains more information than the famous "23 executive orders," but it does not include their text. In fact, I cannot locate where the text of these orders has actually been published before my deadline on this article. I will rely on the summary at ( but not on the author's conclusion that the executive orders have left enough work to Congress to sidestep a Constitutional crisis (although this is not the only place I've found that assertion).

Summary of Executive Actions Commentary
1. Issue a Presidential Memorandum to require federal agencies to make relevant data available to the federal background check system. In the absence of the specific text of the memorandum, it is not known what data is referenced. However, if the data were collected by the government for another purpose and is surrendered without individual warrant, this might be violation of the Fourth Amendment protections on Unreasonable Search and Seizure.
2. Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act that may prevent states from making information available to the background check system. In the absence of the specific text of the memorandum, it is not known what data is referenced. However, if the data were collected by the government for another purpose and is surrendered without individual warrant, this might be violation of the Fourth Amendment protections on Unreasonable Search and Seizure.
3. Improve incentives for states to share information with the background check system. In the absence of the specific text of the memorandum, it is not known what data is referenced. However, if the data were collected by the government for another purpose and is surrendered without individual warrant, this might be violation of the Fourth Amendment protections on Unreasonable Search and Seizure.
4. Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks. The Second Amendment says, "...shall not be infringed," not "...shall not be infringed except for categories of individuals..." This is at best a dangerous place to go, and is a direct violation of the Second and Fourth Amendments if it gives the Attorney General latitude to redefine violent criminals and violent mental health patients.
5. Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun. Again, this is circumstantial. But there is nothing apparent here to stop "law enforcement" from picking up a gun from a law abiding citizen without a warrant, then holding the gun until a background check is accomplished. Besides which, I didn't think that the Attorney General wanted the States to enforce federal laws—they certainly made that clear in Arizona.
6. Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers. This is harmless only because it's unnecessary— unless the goal is to have the dealers run checks for private sellers and buyers for a fee, in which case it is one step toward criminalizing private gun sales.
7. Launch a national safe and responsible gun ownership campaign. OK, this is also harmless because it's unnecessary— just let the NRA do the job it does so well.
8. Review safety standards for gun locks and gun safes (Consumer Product Safety Commission). OK, this is just absurd. Unless they're going to require every gun owner to buy a $20,000 safe.
9. Issue a Presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations. Uh, aren't they already doing this? But I'm sure that returning stolen guns isn't part of their agenda.
10. Release a DOJ report analyzing information on lost and stolen guns and make it widely available to law enforcement. Uh, ditto?
11. Nominate an ATF director. I've got a better idea. Abolish the ATF.
12. Provide law enforcement, first responders, and school officials with proper training for active shooter situations. I hope this means teaching permitting first responders and school officials to gun up and train up, but I doubt it. Of course, doing it the other way violates the Second Amendment
13. Maximize enforcement efforts to prevent gun violence and prosecute gun crime. How does one "prevent gun violence"? And how do you prevent a violent person from substituting "non-gun violence" instead?
14. Issue a Presidential Memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence. I'm informed that the last time the CDC got into this, it was a politicized study intended to find reasons to outlaw gun ownership. We don't need that. As some other pundit has already noted, just give them Lott's book.
15. Direct the Attorney General to issue a report on the availability and most effective use of new gun safety technologies and challenge the private sector to develop innovative technologies. This is another "I'm with stupid" provision.
16. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes. OK, this is serious. First, the Affordable Care Act DOES prohibit these questions (thank you, NRA)1. Second, this is a blatant attempt to deputize physicians to perform warrantless searches and take legal—rather than medical—testimony without the protection of the Fifth Amendment. I respectfully submit that this provision is, by itself, impeachable for its attempted subversion of the Constitution.
17. Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities. This comment distinguished "threats of violence" from "gun ownership." But I'm not sure that no such law actually exists, and it does require a violation of patient-doctor confidentiality. Still, I will concede that notifying of actual threats is not necessarily a bad thing, and might have prevented at least the Aurora shooting. (Of course, so would any patron in that theater who could have shot back without violating the stupid, anti-Constitutional "no firearms" rule.)
18. Provide incentives for schools to hire school resource officers. What does this have to do with Gun Safety?
19. Develop model emergency response plans for schools, houses of worship and institutions of higher education. Uh, isn't this something that has already been done? Of course, it does assume that those organizations are illegal and anti-Constitutional gun-free zones.
20. Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover. For that matter, what does this have to do with Gun Safety? Other than getting people who need counseling into counseling?
21. Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges. Ditto.
22. Commit to finalizing mental health parity regulations. Ditto.
23. Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health. Ditto.

The bottom line is that, even absent the restrictions on gun ownership elsewhere in the President's proposals—which appear to include acceptance of the atrocious Anti-Constitutional Feinstein bill as a baseline—the President's "benign" Executive Actions (or Executive Orders, or whatever) include several provisions that appear to circumvent the Fourth and Fifth Amendments by providing for warrantless searches (conducted by doctors, who don't have enough to do under Obamacare, apparently) and for doctors to also force their patients to witness against themselves on matters of gun ownership. In addition, it admits a medical opinion (without legal foundation) to replaced a formal, individual judicial evaluation that a person is dangerous and should not possess firearms. "... shall not be infringed, except for people who are mentally ill because they own guns and for no other reason." As such, these provisions even without further action provide grounds for Impeachment.

(I will note in passing that DSM IV—the psychologist's manual to diagnosis of mental illness—now distinguishes hundreds of mental illnesses, and the next edition to be published later this year will distinguish more. So it would be easy to manipulate a diagnosis which could prevent gun ownership for millions of people, rather than the very few dangerous psychopaths that lip service would have us believe are being kept away from guns. This is a very credible fear if we don't stop this here. Just ask all of the former Soviet mental patients.)

While this shakes out, I advise that if a doctor asks if you own a gun, you take the Fifth. (I'm glad that I do see one of my doctors more frequently in the gun section of a local hunting store than I do in his office.) After this shakes out...take her to the range with you.

Last Note

While not directly relevant to this series of articles, I will note that the legislation passed by the New York legislature and signed by Governor Cuomo is anti-Constitutional. I don't recall reading "...shall not be infringed, except in New York State" anywhere in the Bill of Rights. Since this legislation outlaws guns and magazines which are currently legal and requires their surrender; and since it leaves the people of New York without the ability to defend themselves against outlaws who ignore these restrictions; then by the arguments in this series of papers, it represents a declaration of war against the law-abiding, gun-owning citizens of New York State, and is thus an act of Treason against the People of New York and the United States.

Terence James Mason is the author of No Loopholes: Getting Back to Basics, an assessment of the meaning of the Bill of Rights and a suggestion of additional Constitutional Amendments to restore the Framer's vision for the Republic. No Loopholes is electronically published by Twilight Times Books ( in Kindle, Nook, and other popular electronic formats. Mason tweets on the need for #NoLoopholes @OneAmericanVoice. Web site:


1 Note the author seems to believe the NRA provision is a bad thing.

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