President Obama’s decision to use executive power in a renewed attempt to curb the availability of firearms is no doubt fraught with legal and political challenges. Here is a look at what his announcement Tuesday entails.
What action is Mr. Obama taking?
Under the package of measures, the definition of a firearms dealer will be broadened to include some who now call it a hobby, according to the White House. As such, anyone who makes it his or her business to sell firearms will be liable for a $250,000 fine if the individual bypasses the background check system.
To date, the line between dealer and hobbyist has been willfully vague. Under the current rules, a Florida man who made $50,000 a year selling guns was acquitted on charges that he bypassed the background check system.
But under Obama’s moves, even a few gun transactions, when combined with other evidence, can be sufficient to establish that a person is “engaged in the business,” a White House memo reads.
The package also increases funding for the Federal Bureau of Investigation to hire more background check inspectors and makes it easier for states to report people with adjudicated mental health issues to the agency.
Why are gun rights groups so opposed?
For many Americans, the executive action is a way to persecute gun ownership by piecemeal federal moves. After all, Obama famously complained about Americans who “cling to guns or religion” during his 2008 campaign.
To some gun owners, expanding background checks is a slip toward tyranny. That’s a big reason why gun sales have exploded in the United States.
As gun rights advocates see it, there’s plenty of evidence that Americans want the system left as Congress designed it, not as Obama envisions it.
“Both Republican- and Democrat-controlled Congresses have failed to amend [the gun show] safe harbor because the majority of Americans believe in the Second Amendment,” J. Christian Adams writes on the conservative PJ Media website.
Is there any common ground here?
Obama’s package of measures may affect the ability of Americans to own firearms. Yet it also satisfies an explicit wish among a majority of gun owners of all political stripes – namely, that the federal government has a major role to play in making sure that gun rights should be extended only to Americans of sound mind and character.
In 2012, for example, the National Rifle Association’s Wayne LaPierre blamed “insane killer[s]” for acts of mass violence. And although this week, House Speaker Paul Ryan accused Obama of executive overreach, in 2013 he called support for closing the so-called gun show loophole “very reasonable” and “obvious.” [Editor's note: This paragraph has been revised to state the correct year of Mr. LaPierre's quote, and the quote itself has been changed to reflect his actual wording.]
According to a recent New York Times poll, Americans are evenly split on whether new gun control laws would make it more likely that the government would at some point try to confiscate weaponry. But the public is more concerned about making doubly sure that Second Amendment rights are extended only to responsible people.
Almost 9 out of 10 Americans would like to see rules that keep people with mental illness from buying a gun, according to a Quinnipiac University poll. Ninety-three percent want stronger background checks, Quinnipiac found, and 55 percent say it’s too easy to buy a gun in the US today.
Is the package legal?
The current regulations on gun sales – as authorized by Congress in the Gun Control Act of 1968 and enhanced with background checks by the 1993 Brady Handgun Violence Protection Act – create a loophole, partly on purpose. It’s designed so that Americans who want to sell all or parts of their gun collection can do so as a hobbyist, without background checks being required.
But the rules as written by Congress create a market for those who can’t pass a federal background check. The loophole is a major one: Some 250,000 firearms a year are sold on the Armslist.com website without background checks, according to the advocacy group Everytown for Gun Safety.
The president has the power to make the Gun Control Act clearer, even if the upshot pushes a policy objective. But then again, the US Fifth Circuit Court of Appeals in November blocked several Obama executive actions on illegal immigration; the administration has appealed to the US Supreme Court.
In time, the US Court of Appeals for the District of Columbia Circuit may have to decide whether the president has overstepped his bounds. According to some legal experts, Obama has the advantage here – if only because Tuesday’s executive action does little but "loudly restate what the existing law is," says Dave Kopel, a Second Amendment expert at the Independence Institute in Denver.
Questions around whether the executive action also constitutes federal tyranny may ultimately be up to the American people to decide – at the voting booth.