Since any gun safety law would face opposition in a Republican-controlled Congress, the president must weigh public opinion

Vice-President Joe Biden’s gun panel is set to report to President Barack Obama next Tuesday. The common view is that any legislation that is at all controversial would have a difficult time getting passed by the Republican-controlled House of Representatives. Now, Biden has raised the possibility of getting gun control measures by executive order.

My advice for the president as someone who reads polls: go for it, if it’s what you want to do. There is much discussion that acting by executive order would be seen as a “totalitarian” action and provoke a backlash. Nonsense, so long as the order is supporting a measure the public favors.

Consider that in June 2012 Obama took executive action on a “mini-Dream Act” that provided a path to avoid deportation for some undocumented immigrants who came to the country before the age of 16, had a high school education (or were attending school) or had served in the military, and had no criminal background. He did so administratively because he couldn’t get a law passed by Congress.

There was heavy public support before the order was signed. Back in late 2010, Gallup found that 54% of Americans would vote for a bill that would allow for undocumented immigrants who were brought to the country in their youth to have a pathway to citizenship. A late 2011, a Fox Poll put support for such a law at 63%.

After Obama made the new policy instruction, the public held to its position. Five polls taken between the June announcement and now found that anywhere from 54% to 64% of Americans still believe that young undocumented immigrants should not be sent packing. This includes three questions that specifically mentioned Obama’s name, and that his administration had “announced” the policy change (in other words, the measure specifically didn’t pass through Congress).

You might argue that the gun debate is different because the powerful gun rights lobby would be able to convince the public otherwise. The flaw in that statement is that the National Rifle Association (NRA) is just not that popular these days: only 42% of Americans have a favorable view of the NRA per Public Policy Polling, which is down from 48% just a few weeks ago.

The president is also dealing with a public that’s seen its support for gun control climb higher since the Sandy Hook school shooting in Newtown, Connecticut. I count five pollsters (ABC/Washington Post, CBS News, Gallup, CNN/ORC, and YouGov) that asked a question about whether gun control should be stricter before and after Newtown. Before the massacre, the weaker “stay the same” position on gun control beat the stricter position by an average of 3.8 percentage points. Afterward, stricter led by 11.4pt – a 15.2pt turn-around.

Past history suggests that the president can’t wait around until he gets a Congress that is willing to cooperate. After the Columbine shooting in 1999, Americans’ support for stricter gun laws jumped by 5-10pt. After a year or two, the spike had abated and appetite for stricter gun laws continued its slow decline to the minority position it held just before Newtown.

So what policies should the president consider, as long as he thinks courts will uphold his orders?

• He should end the “gun show loophole” to force people who buy guns at a gun show or through private sales and online shopping to have a background check: 92% of Americans favor this position per Gallup, while PPP puts support at 76%.

• Obama should seek to ban high-capacity ammunition clips that contain more than 10 bullets: CNN/ORC, Gallup, Pew, PPP, and YouGov all show at least 53% of Americans in favor of this policy.

• He should seek ways to ensure that people with poor mental health records do not get a gun: CNN/ORC found that 92% Americans did not want Americans with mental health problems to be in possession of a gun; PPP took it one step farther and discovered that 63% of Americans want people to be required to take a health exam before buying a gun.

• Obama should obviously prevent felons convicted of a violent crime from owning a gun: 94% and 92% approve of that measure, per PPP and CNN/ORC respectively.

• He should try to make sure that guns, even if not recently purchased, would be registered with a government or law enforcement agency: CNN/ORC finds 78% agree with that policy.

• Obama should look to ban outright bullets that explode or are designed to break through a bullet-proof vest: Pew found that 56% favor this position.

• Obama should try to make it more difficult to buy ammunition and/or guns over the internet: 69% of Americans wanted to ban these practices, according to PPP.

You’ll note I don’t include an assault weapons ban. The reason is that pollsters are split: Gallup and Pew signal that a majority is opposed to banning assault or semi-automatic weapons, while ABC/Washington Post, CNN/ORC, PPP, and YouGov show the reverse. It seems to me that, politically speaking, an executive order would be the wrong course on an issue that apparently splits the country down the middle.

Further, the president would almost certainly be better-off passing any law through Congress. It not only looks better, but it lessens the chance of any political blowback I may be underestimating. The danger, of course, is that if a bill fails to get through Congress, it would look like awfully sour grapes then to obtain gun control measures through executive orders. It’s quite possible that the public would see that as executive over-reach.

Also, I am by no means a constitutional scholar: while there are plenty of people arguing in favor of executive action, others argue that some of these proposals, if put into action by executive order, would be unconstitutional and would be ruled so.

That said, if the president is sensitive to public opinion and reading the polls, there are a number of gun control policies he can obtain by executive order without fear of a backlash. But the lesson of Columbine is that he has a narrow window of opportunity, in the wake of Newtown, in which to act.