01/28/2013 10:09 am ET Updated Mar 30, 2013

President Obama, Issue a 'Safe Nation Proclamation'

To the President:

Mr. President, to achieve gun control, you don't need Congress. Simply issue a "Safe Nation Proclamation."

You say that your Executive Orders go as far as they can. With all due respect, that is simply not the case.

Let's begin with Justice Scalia's favorite logical device -- the reductio ad absurdum. An individual has no unqualified right under the second amendment to possess a tank or an atomic bomb. Even assuming the recent discovery by the Supreme Court of an individual right to bear arms, it is based in the concept of defense of self and property. There is no absolute right to possess offensive weaponry, used by the military to confront opposing military force. The line between military and non-military weaponry has constitutional significance. There are two phrases in the second amendment. One has to do with the people's right, defined most recently by the Supreme Court to permit possession of weapons used for self-defense or defense of property. That right cannot be infringed. The other phrase refers to a right to possess military weaponry as part of an organized militia. If there is a right to possess a tank or a machine gun or a hand grenade it is a qualified right at best, as part of our right to participate in local militia.

But there are no more official militias. Those state-based militias have all been absorbed into the National Guard. As such, the National Guard is responsive to the same command and control as any other unit of our national military. The President is the commander-in-chief. He has certain clearly defined authority. Operating as the chief military executive, he can define, in the first instance, what constitutes military weaponry. He can determine, for example, that any automatic or semi-automatic weapon, or a gun with a magazine holding more than five shells, or any armor-piercing ammunition, constitutes a "military weapon." What is the significance of that determination? Simply put, the President as the commander of all militias has the authority to control all military weaponry. He can, and should, order that all military weaponry be stored at the nearest National Guard armory. All persons in possession of such weaponry could be ordered to turn those weapons in for storage within 48 hours, or be subject to military prosecution. In case of national emergency declared by the President, those weapons would be released to their owners so as to be useful in arming the public in their role as members of their local militias.

Although ownership of military weaponry would not be affected by the storage order, some military gun owners might complain that the President's order is needlessly confiscatory. This argument would derive from the property protection in the fifth amendment's due process clause. Although the above argument posits that an individual has only a qualified right to possession of military weaponry, the fifth amendment argument could be defeated by permitting local National Guard commanders to determine whether there is adequate weaponry in storage to meet any predicted type of emergency, and if there is, excess weaponry could by decommissioned (destroyed) and the owners of the weapons compensated at a fair market rate. This process might mimic the successful "gun buy-back" programs in place in many big cities.

The vast majority of gun owners are patriotic and law-abiding citizens. While possibly not agreeing with the President's storage order, they would nevertheless comply. In Newtown, Conn., despite her love for automatic weaponry, Mrs. Lanza would have obeyed the President and Commander-in-Chief. If her weapons were determined to be excess and subject to de-commissioning she would have, at her choice, received compensation. She and her son, and twenty first-graders and six teachers, may still be alive.

We have paralyzed government in a time of crisis. This is your second term. It is time for bold leadership. This month is the 150th anniversary of the Emancipation Proclamation, another executive order issued in a time of crisis. Lincoln was an astute politician, as are you. Your "Safe Nation Proclamation" will put the onus on Congress to try to overrule you by passing a gun law that permits possession of military weaponry. It would never pass. Nor would the Supreme Court, when asked to find an unqualified right to possess military weaponry, put the Newtown blood on their hands by affirming such a right. States might try to withdraw from the National Guard and re-establish militias responsive only to their governors. Let them try to put their communities at risk only to promote possession of military weapons. It won't work. This is a battle you can win. Go for it, and a grateful nation will forever be in your debt.

Very truly yours,

Roger Lowenstein