President Obama’s Executive Gun Control

On January 4, 2016, President Obama announced a series of new executive actions intended to increase restrictions on gun sales and access. The statement “clarifies” that the definition of those “engaged in the business” of selling firearms, making it more difficult for individuals to transfer the ownership of guns, and expands staffing for the enforcement of these guidelines. It directs the Social Security Administration to determine how to share private mental health records with the National Instant Criminal Background Check System (NICS), potentially prohibiting law abiding citizens, including veterans and older Americans, from purchasing or possessing a firearm. It also asserts a strong federal role in “shaping the future of gun safety technology,” laying a foundation to develop additional regulations for gun manufacturers.

The White House cited Congress’s failure to take action as justification for its executive actions. But congressional inaction is no justification for Presidential overreach. Congress should block the President from implementing this policy, which will have a chilling impact on many gun sales.

Expanded Background Checks: The Gun Control Act of 1968 establishes a series of restrictions on those who are “engaged in the business” of selling firearms, with the “principal objective of livelihood and profit.” This provision covers those who operate gun stores, requiring them to secure a Federal Firearms License, keep meticulous records on every person who purchases a gun, and run a background check on a purchaser before sale. This provision contains an exemption for a person “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.”

The executive actions clarify that a person can be deemed to be “engaged in the business” of selling guns, “even if the person only conducts firearm transactions at gun shows or through the Internet.” The statement does not set a threshold number of firearms purchased or sold that triggers the requirement to secure a license, but notes that “even a few transactions, when combined with other evidence, can be sufficient to establish that a person is ‘engaged in the business.’” While the Administration relies on court decisions where individuals have been successfully prosecuted consistent with this clarification, many conservatives are concerned that these obscure scenarios are being used to effectively propound a broader definition of what it means to be “engaged in the business” for regulators.

The result is a potentially wide expansion of discretionary authority for the federal government, allowing bureaucrats to target individuals who are selling from personal collections.

To ensure that they avoid penalties up to $250,000 and five years in prison, individuals will need to use a federally licensed dealer as an intermediary, which involves additional fees, a background check, and a record of the transaction. This attempt to reroute a larger number of gun exchanges to federally licensed dealers is consistent with a troubling 2013 memo from the Department of Justice, which argued that effective background checks require gun registration, and that “understanding gun sources requires a sustained and localized surveillance program.” The Left has long wanted a system of universal background checks, which to enforce, eventually requires a gun registry.

To enforce this policy, the administration is proposing to hire an additional 430 agents, 200 for the Bureau of Alcohol, Tobacco, and Firearms (ATF), and 230 for the FBI (to ramp up background checks). This ramped-up enforcement is particularly troubling considering the ATF’s likely intent to target a broader class of individuals.

Mental Health: The White House is proposing an additional $500 million in spending on mental health care, paired with tighter restrictions on the ability of those with a mental health illness to access guns. The administration’s plan is expected to require the Social Security Administration to report the records of approximately 75,000 people with documented mental health issues for inclusion in the National Instant Criminal Background Check System (NICS). The language is ambiguous, leaving concerns that this provision could affect veterans with post-traumatic stress disorder, retirees receiving benefits through a representative payee, and potentially other Americans suffering from mental health illnesses which should have no bearing on their gun rights.

“Gun Safety” Technology: The plan includes a memo directing federal departments to increase research and development, as well as acquisition, of new gun safety technology – such as fingerprint scanners, radio-frequency identification, and microstamping. This could help to set precedent for future regulations of firearms manufacturing.

The administration’s plan, crafted in response to the shootings at San Bernardino, is a sophisticated and dangerous distraction from the real threat of radical Islamic terrorism. By seizing the tragedy as opportunity to push gun control policies, the president is causing genuine harm to citizens’ constitutional right to bear arms, while distracting from the opportunity to confront the real threat of radical Islamic terrorism. Congress should make it clear that President Obama’s “phone and pen” attack on our constitutional rights needs to end, and take action to stop the president’s action.

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