Government Watch

Obama’s Executive Fiat on Gun Control

obama (7)From – – By John G. Malcolm

Frustrated by his inability to bend Congress to his will, President Barack Obama has once more picked up his trusty pen and phone and issued a series of “executive actions” on gun control.

While there may be a budgetary impact, several (but not all) of the president’s proposals are not controversial from a legal standpoint, although they may be controversial from a political or public policy standpoint.

What the President Announced

The president is asking Congress to provide funding for, among other things, 200 new agents and investigators for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to enforce existing gun laws and a new $500 million investment to increase access to mental health care.

He announced that the FBI will hire an additional 230 examiners and support staff to expedite the process of conducting background checks using the National Instant Criminal Background Check System (NICS) and has directed the FBI to partner with the U.S. Digital Service to modernize NICS.

He announced that, at his direction, Attorney General Loretta Lynch had convened a call with U.S. attorneys around the country to instruct them (as if they didn’t already know this) that they should continue targeting the “worst of the worst” gun crimes and continue to assist their communities in combating gun violence.

She will also be preparing a memorandum encouraging them to renew domestic violence outreach efforts. The president has also instructed Lynch to write a letter to states stressing the importance of receiving complete criminal history records, as well as information about persons disqualified from possessing guns because of having been “committed to a mental institution” or “adjudicated as a mental defective” or having been convicted of a qualifying misdemeanor crime of domestic violence.

He has also directed the Departments of Defense, Homeland Security, and Justice to conduct or sponsor research into gun safety technology and to promote the use and acquisition of smart gun technology.

None of these proposals is legally problematic, as any president remains free to provide guidance to federal agencies and to ask Congress to appropriate money to fund his priorities. Indeed, gun rights proponents have long been urging the president to update and improve the National Instant Criminal Background Check System, which was the impetus behind, for example, the NICS Improvement Amendment Act of 2008.

What’s Subject to Legal Challenge?

Some of the president’s announced actions may, however, be subject to legal challenge, as the details emerge in the coming days. It is no secret that the president wishes to close the so-called “gun show loophole” by expanding the number of small-scale sellers who must register (and be licensed) as federal firearms dealers, which would then require them to perform background checks whenever selling a weapon.

Federal law provides someone is “engaged in the business” of being a firearms dealer whenever “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, but such term shall not include 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 Role of the ATF

The president announced that the ATF has “clarified” that a person can be “engaged in the business” of being a firearms dealer regardless of the location in which firearms transactions are conducted and even a few transactions can trigger the licensure requirement “when combined with other evidence” sufficient to establish that someone is engaged in that business.

Although it remains to be seen what enforcement actions ATF pursues, this is not really a new development, as several courts have held that it is what you are doing, not where you are doing it, that matters, and federally licensed firearms dealers have long been required to conduct background checks whether they sell guns in their store or at a gun show.

Courts have also held that other factors, such as holding yourself out as a firearms dealer or engaging in repetitive transactions for profit, ought to be taken into consideration when making such a determination.

Most significantly, nothing in this “clarification” changes the definitions contained in existing law, and any attempt by this (or any) administration to unilaterally re-write those definitions to reclassify individuals who only engage in “occasional sales” as gun dealers subject to licensure requirements would certainly be challenged in court, and would likely fail.

If the president wants to rewrite the law, he must work with Congress to do so.

Who Qualifies as Mentally Ill?

Another potentially troubling issue involves the president’s announcement that the Social Security Administration will begin the rule-making process to ensure that “appropriate records” are reported to the National Instant Criminal Background Check System pertaining not only to people who have been determined to be mentally ill or legally incompetent by a judge, but also to people “who have a documented mental health issue, receive disability benefits, and are unable to manage those benefits because of their mental impairment.”

If a veteran is being treated for PTSD (post traumatic stress disorder) or someone is prescribed anti-depressants or anti-anxiety medication by a psychiatrist, will that person now have “a documented health issue”?

If a retiree receives Social Security benefits through a “representative payee,” will that person now be deemed “unable to manage those benefits” because of some “mental impairment”?

Can a government bureaucrat take away a constitutional right based on these bases without a judicial hearing?

Can a government bureaucrat take away a constitutional right based on these bases without a judicial hearing? That remains to be seen.

Law-Abiding Citizens

While gun violence is a legitimate subject of public concern, it is important to remember that while gun ownership in this country has risen dramatically over the last several years, gun-related deaths (other than suicide) have declined.

Many law-abiding citizens choose to exercise their Second Amendment rights to protect themselves and their families, and recognize that there may come a time when they are confronted by an armed assailant and seconds matter—but the police are minutes away.

They should not be prevented from doing so by ill-conceived and possibly unlawful policies implemented by executive fiat.


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7 years ago

What can be done about H.R. 4269 referred to the 114th 2015-2016 Congress that has just been submitted (this week) and then referred to the judicial side, endorsed and signed by123 democrats? Look this up and read all of the over100 page contents, etc., including the names of hundreds of weapons to be banned. You will be surprised! “not yet”, the process has begun!

Ruel D
7 years ago

The last paragraph really said it all. The anti-gun nuts are about taking guns away from law abiding citizens. I’m sure the politicians that make these laws are not stupid enough to believe that they will have any impact on the criminal use of guns. This article is very well written by someone who obviously knows what he is talking about. If Mr. Malcolm is not a legal expert he has certainly done an excellent job of research. Congratulations, sir on an informative and balanced article. Thank you, Newsmax for publishing it.

7 years ago
Reply to  Ruel D

Socialists such as Stalin, Hitler and Mao are famous for using the medical profession during their various reins of terror to deem anyone who disagreed with the policies of the government “mentally unfit” and therefore provided a legal justification for gun confiscation in the name of “public safety”. Sound familiar? The purpose is to stigmatize gun ownership in this country and provide the federal government, via enlisting the medical profession to identify as many gun owners as possible as “mentally suspect” during routine medical checkups, so police can legally confiscate guns from law abiding citizens. An unarmed public is an easily controlled public, which is what socialism is all about. Under socialism, the government determines what your rights are depending on the mood of the leadership on any given day. You live where they want you to live. You work where they want to work, in the job they deem you should have. In general, a purely government controlled society that exist for the benefit of the government itself. All this is only possible after the public has been completely disarmed, so there can be no effective resistance. When only the government has guns, that makes it so much easier to impose the government’s will on the population.

All Obama is doing is targeting the lawful gun owner with these executive actions. None of these executive actions would prevent any criminal or terrorist from obtaining access to an firearm. Neither criminals nor terrorists obtain their weapons through following existing legal gun laws, the existing federal background check process that exists in all 50 states or buying their guns through licensed gun dealers themselves.

Ruel D
7 years ago
Reply to  PaulE

Beautifully said and right on the money, as usual. I have been to socialist countries and was less than impressed. In the late ’70’s I made two trips to East Germany with the Army. I saw my first working steam locomotive. I saw cops on every corner, and they weren’t there to help little Hermann across the street. I saw unbelievably shoddy products, and a listless, ambition-less citizenry. The shoddy product is a perfect example of how socialism works. You have $100,000 to start a business making a product. You have to pay $50,000 to various government hacks to be allowed to make this product. That leaves only half of your start up money to pay for salaries, research and development, work site, and, of course, production. The $50K went to the government hacks to provide zero oversight, so what kind of product do you think is coming out? And everyone will buy the product because it is THE government supported product; end of discussion. The political hacks of this country know that they will not be able to foist this type of government off on a healthy, vibrant, free people, so step one is grabbing the guns. I have heard many arguments since the President’s announcement saying that he is not taking away anyone’s guns. I would add the word “yet”. In California, there is now a law that, on the recommendation of a “licensed mental health professional” or on a court order, your guns can be confiscated. No crime necessary. What is a licensed mental health professional? A psychiatrist? A social worker? Anything in between? That is incredibly dangerous. Having the Attorney General strongly suggest that doctors break their patient/physician confidence is brutally revolting, and I suspect that most doctors won’t do it. I also suspect that Mr. Obama will have a real tough time getting local law enforcement to back him up. I also know that the gun grab is far from over. They will come again and again, taking little bites each time until we wake up a find our freedoms gone. Once the 2nd Amendment goes, the others will follow quickly.

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