Emergency Powers on Guns

Matt Grodsky is the Vice President, Director of Public Affairs at Matters of State Strategies, he previously served as the Director of Communications for the Arizona Democratic Party from 2019 to 2021. He is the author of Righteous Might: How Democrats Turned Arizona Blue And How You Can Flip Your Battleground State

Twitter: @mattgrodsky

The leading cause of death for children in the United States, the supposed greatest country on Earth, is firearms. This is an emergency.

Our gun homicide rate is 25 times higher than other modern countries. This is an emergency.

Between 2009 and 2020, the five deadliest mass shootings all involved assault weapons and/or high-capacity magazines. In that same time period, 55 percent of all mass shootings involved a high-capacity magazine. This is an emergency.

Gun massacres (six deaths or more) fell 37 percent while the assault weapons ban was in place, it rose by 183 percent after the ban expired. This is an emergency.

All the victims of the Buffalo grocery store shooting were not even buried when 19 children and two teachers were senselessly decimated by a mass murderer with an assault rifle in a Texas elementary school. Since Uvalde, there have been roughly 33 mass shootings two of which were in Arizona. That figure coupled with the heart wrenching gun violence testimony in Congress yesterday should give us all pause.

I support responsible gun ownership but not insanity, as do most Americans regardless of party.  Some 60 percent of Americans support banning the manufacture, possession, and sale of semi-automatic rifles, roughly 80 percent support expanded background checks. Arizonans’ support for stricter gun laws has fluctuated but has remained noticeably higher for the last two years — for instance, in 2020 half of Arizona voters supported stronger gun laws.

But with a cowardly Congress apparently incapable of fixing this issue and an anxious American population paralyzed in the fear of dropping their children off at school – what are we to do?

The solutions are not more guns in schools and fewer doors – as some would have you believe. The events of Robb Elementary render those arguments moot.

Beyond the many common-sense policies that have been proposed, there is one that has yet to be discussed as much as it should be. The President of the United States is equipped with emergency powers. Using these in the wake of gun violence atrocities is not an original idea, but it presents a solution to our epidemic. Legal arguments and Constitutional debate aside, here’s what using these powers in this instance could look like.

Under the Insurrection Act of 1807, the President could invoke his emergency powers to address the emergency of gun violence in America. The President would have the authority to use the National Guard and the powers of the Federal Government to specifically keep militarized firearms off our streets.

The Act was invoked during the Civil Rights era by Presidents Eisenhower and Kennedy to deploy troops to enforce desegregation. Lincoln used it to defend the Union in the Civil War and it was also leveraged for post-war Reconstruction. These represented extended uses. The Act was invoked in short-term form as well. It was used in 1992 to help stop the LA riots. Before that, it went into effect in 1989 during looting in the Virgin Islands. In 2006, the act was amended to expand the instances when the President could invoke the law after the response to Hurricane Katrina. The amended Act expanded the language to include natural disasters, epidemics, other serious public health emergencies, terrorist attacks or incidents, or other conditions.

House Speaker Pelosi warned Republicans as recently as 2019 that a future Democratic president could declare gun violence a national emergency when Trump was then working to invoke these very powers to erect his border wall.

Under the Insurrection Act of 1807, the President could arguably halt the sale and distribution of all assault weapons and high-capacity magazines in the United States, implement mandatory confiscations of assault weapons from places that sell and distribute them, and perhaps institute a national firearms database. This would not include seizures from owners themselves, something that would likely lead to violence. The President would be turning off the spigot of military-style firearms in the American market. The President could keep these policies in place until Congress passes legislation that finally includes:

  • National red flag laws

  • Universal background checks

  • Raising the purchasing age requirements for all firearms

  • Closing loopholes – especially those with gun shows and straw buyers

  • High-capacity magazine and semi-automatic assault weapon bans

  • Mandatory buy-back of semi-automatic assault weapons

  • A Constitutional Amendment updating the language of the 2nd Amendment

There are those who might argue that this would be an abuse of Presidential power, that he would essentially be holding Congress hostage. But America is being held hostage by fear. We are afraid to go to school, the movies, or the grocery store. These actions would not prevent every shooting but it would be the first serious step in halting the flow of weapons into the hands of people who should not have them.

In 2001, four planes hijacked by terrorists took the lives of nearly 3,000 Americans and we grounded every plane. We identified our security weaknesses and we took action to address them before any planes flew again. Where is that level of concern here?

This idea of Emergency Powers is not ideal nor politically advantageous but it may be necessary. Critics might call this proposal the full embodiment of the argument “the government is coming to take away your guns” but those claims pale in comparison to the fact that “the gunmen are coming to take away your children.”

This is an emergency. The President can use his emergency powers to address it.