The Daily Signal

What You Need to Know About Obama’s Plan to Bypass Congress on Guns

With Congress unlikely to oblige on his calls for gun control after the San Bernardino terrorist attack, President Barack Obama is expected to act alone on the issue soon. (Photo: Saul Loeb/UPI/Newscom)

Stymied by Republicans in Congress, President Barack Obama is expected to act alone to take executive action to tighten restrictions on gun sales.

White House adviser Valerie Jarrett, speaking at a vigil last week for victims of the 2012 Newtown, Conn., shooting, confirmed that the president has asked his staff to complete a proposal that would expand background checks on gun sales without congressional approval.

Before Jarrett’s public pronouncement, The New York Times and other media have reported the Obama administration’s action would broaden the definition of who is considered a high-volume gun dealer, a move that could force background checks for certain sales at gun shows, online, and in other areas that fall outside the law.

The Gun Control Act of 1968 already requires professional gun dealers to be licensed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Buyers of guns from federally licensed dealers are subject to background checks.

But the existing law doesn’t clearly define what it means to be in the business of selling guns.

Obama’s executive action would intend to clarify that distinction in a way that broadens who is in the gun-selling business, so that more sales are “on the books” and thus require a background check.

According to legal experts who spoke to The Daily Signal, Obama would be within his rights to pursue such an action because he would be simply reinterpreting how to apply already existing law, rather than creating new legislation.

But these experts also said Obama’s action would have limited impact on the availability of guns.

“When Congress passes an ambiguous statute, the president absolutely has it within his authority to interpret federal statutes for purposes of how he chooses to implement them,” said Adam Winkler, a UCLA professor focused on constitutional law and the Second Amendment.

“In this case, the law requires someone to obtain a license if it’s in the business of selling firearms. But there is no clear definition of what that means. Is it just someone who sells guns, or do they need to sell a certain number of guns, a specific type of gun, or sell it in a specific place? We don’t know the parameters. So it’s up to administrative agencies to define what that means.”

Nicholas Johnson, a Fordham University law professor focused on firearms law and the Second Amendment, agreed that there is “no doubt” Obama could use existing law to expand the definition of a gun dealer, though he expects the effort to be challenged in court.

“They are not changing the statute,” Johnson said of Obama’s proposed action on guns. “They are looking at the 1968 Act and saying, ‘How can we administratively change the definition of what it means to be a dealer and to capture it in away to cover more people in gun shows?’ There is no doubt the president and ATF have the authority to change the definition of what it means to be dealing in firearms.”

Winkler and Johnson say the key question that Obama is probably weighing is how broadly or narrowly to define what would qualify as a high-volume gun dealer.

If they reach too far, Winkler says, the NRA and other opponents of gun control will argue that the stricter rules would unfairly burden individuals who aren’t professional sellers.

“There may be arguments that however Obama interprets it is so divorced from what Congress intended that it goes too far and it’s illegal in that way,” Winkler said. “I don’t think people would think that someone who inherits a gun from their father and sells it at a gun show is engaged in the business of selling guns.”

Hans von Spakovksy, a senior legal fellow at The Heritage Foundation, agrees that Obama should be careful in how he applies the definition of a gun-selling business.

As von Spakovsky notes, Section 21 of the 1968 Gun Control Act defines a person “engaged in the business” of selling guns as “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”

“So it depends on what the president tries to do,” von Spakovsky said. “Notice that this definition only applies to people who sell firearms as ‘a regular course of trade or business’ to make a living; thus, people who engage in occasional sales or for whom it is not their principal livelihood are not firearms dealers. The president has no authority to expand this statute beyond these terms. If he does so, he will be acting outside of the law.”

Obama has acted alone on gun control before.

After the murder of 26 children and staff members at Sandy Hook Elementary in Newtown, Obama imposed 23 executive actions that are considered modest and to have had little impact.

At that time, Obama had pushed Congress to pass a law requiring universal background checks for all gun purchases, but the measure failed.

More recently, after the San Bernardino terrorist attacks, Obama is calling for Congress to ban people on the government’s no-fly zone from buying guns, and to order restrictions on assault weapons.

The Republican-controlled Congress has shown little interest in obliging. If that continues, Obama is limited in what he can do without them, the law experts say.

“The truth is, the president’s hands are pretty tied,” Winkler said. “There is not a lot he can do on guns. Anything significant really requires going through Congress.”

Added Johnson:

I am cynical. I call this security theater. Do I expect this action to have any sort of impact? No, other than leading to another run on people buying guns, which will bring more inventory on the market that could be stolen and end up on the black market. Most crime guns are illegal or stolen. This is a vicious cycle. The president is going after low-hanging fruit.