Obama’s “New” Gun Control Bomb is a Dud
By Jeff Knox
Director of The Firearms Coalition
(January 5, 2016) President Obama released details of his “New Executive Action to Reduce Gun Violence and Make Our Communities [sic]” last night, and the here’s the summary: It’s not new. There’s little action. And it will do nothing to reduce gun violence or make our communities safe.
The key feature most people have been talking about was the idea of providing a more specific definition of what constitutes “engaging in the business” of selling firearms. Many of us would welcome a clear definition for that term, because the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has been playing fast and loose with the current, open-ended definition for almost 50 years. But in spite of all of the hints and speculation to the contrary, Obama left that bit of poorly-worded regulation in place. Instead, he merely reiterated that anyone “engaging in the business,” whether at a brick and mortar gun shop, a gun show, or through ads on the internet, is still “engaging in the business” and must be licensed.
Just as the requirement for car dealers to be licensed doesn’t prevent you from selling your car, the requirement to be licensed if you are “engaging in the business” of buying and selling firearms does not preclude someone from selling a gun, or guns that they no longer want. In fact, there are many people who routinely buy, sell, and trade guns as a hobby, like collecting coins or model train cars. The problem is that under the current definition, one guy might swap or sell dozens of guns in a year and not be considered to be “engaging in the business,” while another guy might only engage in a couple of transfers and face felony charges.
Obama reiterated this confusing situation in a “Fact Sheet” that spells out the various aspects of the “Executive Action:”
“Quantity and frequency of sales are relevant indicators. There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement. But it is important to note that even a few transactions, when combined with other evidence, can be sufficient to establish that a person is “engaged in the business.” For example, courts have upheld convictions for dealing without a license when as few as two firearms were sold or when only one or two transactions took place, when other factors also were present.”
What this means in practical application is that anyone who sells a couple of guns can be arrested and face felony charges if an ATF agent chooses, and historically, when an ATF agent does choose to pursue charges, they can make the charges stick in court, because judges and juries generally know little about firearms, gun collecting, or the ambiguities of gun laws. A common trap is for a guy to see a deal at a gun show on a gun that he knows a friend has been looking for. The guy buys it, and when his friend shows up at the show later that day or the next, the guy sells it to him. A zealous ATF agent could charge him with “engaging in the business” without a license, or with making a straw purchase. Either charge is a felony with penalties up to 5 years and fines up to $250,000.
If, on the other hand, the same guy were to buy the same gun with the intention of keeping it, then later his friend shows up and talks him into selling it to him, that would be a legal transaction. Everything depends on the person’s intentions, whether he made a profit, and whether he does this sort of thing as a way of generating income. But in court, what the ATF agent says the person’s intentions were carries more weight than what the person says his intentions were. In one case, prosecutors used the fact that the collector kept meticulous records of every gun he ever bought or sold, as ATF recommends, as proof that his hobby was really a business. He was sent away for two years, his career ruined, and can never touch a gun or ammunition again.
With Obama’s emphasis on this aspect of firearm transfers, even though he did not change any regulatory definitions, he is clearly signaling to ATF and federal prosecutors that he wants them to be more rigorous in pursuit of unlicensed people “engaging in the business,” and that means that ATF is almost certainly going to be interpreting the law more strictly than they have been in recent years. Anyone who ever sells guns, and especially anyone who frequents gun shows or sells multiple guns through want ads on the internet, is at much greater risk today than they were yesterday. Expect to see a rash of news reports about ATF agents arresting people for “engaging in the business” without a license.
The “Executive Action” also proposes hiring more ATF and FBI agents to enforce gun laws and run background checks, and to throw a bunch of money at mental health services, but he’ll need congressional approval for such expenditures.
There is also a paragraph about tightening the rules for purchase and ownership of firearm suppressors (silencers), short-barreled rifles and shotguns, and machine guns. Though criminal misuse of these types of items is almost completely unheard of, Obama and ATF want to clamp down on them, and their owners, even tighter.
The most troubling aspect of the “Executive Action” is the revival of a proposal to have the Social Security Administration submit to the FBI the names of benefit recipients who are listed as unable to manage their own affairs. I wrote about that here several months ago and was hoping the idea had died as it should have. This nonsense has been going on at the Veterans Administration for a number of years, resulting in the loss of Second Amendment rights for tens of thousands of veterans. Adding tens of thousands of SSI recipients to the prohibited list is not going to make anyone safer, but it will mean that anyone who has turned over management of their Social Security benefits to a spouse or family member will be committing a felony if they ever have access to a gun or ammunition – even under supervision. This must be loudly rejected.
None of the proposals would have prevented any of the high-profile tragedies we’ve seen over the past several years. They won’t reduce “gun violence” or make our communities safer. This whole exercise has been nothing but a propaganda drill to drum up support for past proposals that were rejected. Hopefully they will be rejected again.
Jeff Knox is the Director of The Firearms Coalition, a coalition of grass roots organizations, clubs, and individuals dedicated to restoring and protecting the Second Amendment rights of everyone.