There’s a Washington Post article being circled around the gun community that have some believing that the president is going to bypass Congress and, via executive order, mandate background checks for all gun sales, particularly those made between private buyers and sellers.
The WP article is titled, “Obama weighs expanding background checks through executive authority,” and it’s a little misleading in the sense Obama cannot by himself enact a law requiring universal background checks. As we all know, for a bill to become a law it requires Congressional action. A background check bill, like the one that failed to clear the Senate in 2013 (the Manchin-Toomey Amendment) is no exception. It must clear both chambers before it becomes the law of the land.
So, no. Obama cannot by himself enact universal background checks.
That said, what Obama’s crackpot team of lawyers and policy wonks are trying to do is to make those private individuals who sell or transfer an arbitrary number of firearms each year subject to ATF oversight and scrutiny. In short, make them get a federal license to sell firearms.
From the WP:
The proposed executive action aims to impose background checks on individuals who buy from dealers who sell a significant number of guns each year. The current federal statute dictates that those who are “engaged in the business” of dealing firearms need to obtain a federal license — and, therefore, conduct background checks — but exempts anyone “who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”
White House officials drafted the proposal in late 2013 to apply to those dealers who sell at least 50 guns annually, after Congress had rejected legislation that would have expanded background checks more broadly to private sellers. While the White House Office of Legal Counsel and then-Attorney General Eric H. Holder Jr. initially concluded the regulation was legally defensible, according to several individuals involved in the discussions, some federal lawyers remained concerned that setting an arbitrary numerical threshold could leave the rule vulnerable to a challenge.
To recap, the Obama administration would like to quantify the number of firearms or transfers that a private individual or non FFL can make in a year before they are considered “engaged in the business” of dealing firearms. That arbitrary number that they set in the past was 50. So, if you sell 50 or more guns in a year you would need a federal license, regardless of whether it was hobby, done on occasion or if the firearms were part of a collection.
And if you are required to have a federal license under this 50-gun transfer rule (I guess that’s what we’ll call it), then you are also required to conduct a background check on each of your potential buyers. It’s pretty sneaky, huh?
I discussed this provision with a very prominent pro-gun lobbyist and I asked him specifically, A. Could this really be done via executive action? B. Would it stand legal scrutiny? and C. Wouldn’t it be impossible to enforce?
He didn’t want to comment on the record yet because the details have yet to be officially drafted. But his answer to each question were: A. Maybe. B. Maybe and C. Maybe. I guess well have to wait and see what materializes before we can render judgment on its political feasibility, its legal standing and its real-world implications for private sellers.
The WP did, however, get a quote from National Rifle Association spokeswoman Jennifer Baker who voiced on obvious frustration with redefining the statute in that it is likely to “ensure” regular folks such as a widow selling of her late husband’s gun collection.
“People who repeatedly sell large volumes of firearms are already covered in the current statute because they are already defined as ‘engaged in the business,’ ” she said.
Moreover, the Post also pointed out that the ATF wasn’t pleased with the thought of enforcing the proposal because it’s not exactly clear how many people would be affected by the change.
“Everyone realized it would be hugely politically controversial,” said one individual, who spoke on the condition of anonymity, reported the Washington Post.
At the end of the day, the president’s hands are tied whether he likes it or not. Something called the Constitution stands in his way. While Obama undoubtedly views it as a living document that should be transformed to fit his agenda, there are hundreds of lawmakers in the House and Senate who believe otherwise, thankfully. Whatever the Obama administration proposes over the course of the next couple of weeks, we can all rest assured that it will be met with fierce opposition from pro-gun politicians, gun owners and gun manufacturers. Obama failed to gut our Second Amendment following Sandy Hook, there is reason to believe he’ll fail once more.
But that doesn’t mean we can rest an our laurels. Be prepared to stand and fight.