Tue
Jan 5 2016
03:12 pm

President Obama today announced some executive actions he is taking with regard to guns and gun violence. In the announcement, he referenced the recent heroism and tragic death of Zaevion Dobson here in Knoxville, noting that exhibiting just a fraction of Dobson's sacrifice and determination is all it would take from the rest of us to counter the oversized influence of the gun lobby on Congress. Obama noted that the rest of us exercising this determination is what it will take to effect significant and lasting change, by getting Congress to act on the issue.

Here is the important takeaway from all this:

The gun lobby, through the NRA, always responds to any proposal for new legislation that the government should do more to enforce the laws on the books before proposing anything new.

If you look carefully at what the President has said he is going to do through executive action, it is exactly what the NRA has called for: doing more to enforce the laws on the books.

Before the President was even finished making his statement from the East Room of the White House, the Speaker of the House and GOP presidential candidates were out of the gate with opposing statements, accusing the President of overstepping his authority, and declaring intent to undo, oppose, and de-fund anything the President tries to do.

This is why the NRA and their rented politicians must be reined in or replaced. They are simply not serious about this issue. Their call for enforcement of existing laws is a disingenuous dodge. They don't want the existing laws enforced. Enforcement cuts into gun sales, and the gun manufacturers don't want any of that.

Making sure that gun dealers avoiding the law by posing as hobbyists will be opposed. Funding of the manpower required to carry out enforcement of existing laws will be denied. The request from the Department of Justice asking state and local law enforcement to share criminal justice records with the federal background check database will be ignored. Federal agencies taking increased action to enforce the laws on the books will face Congressional budget cuts.

All this is because even when the President makes it a firm objective to do exactly what the NRA has been calling for by enforcing the laws currently on the books, he will be resolutely demonized and opposed.

This is why the large majority of people who are reasonable and rational must make this a top-tier election issue. Members of Congress and candidates for President will only act reasonably and responsibly on this issue if they believe their jobs depend on it.

R. Neal's picture

Just as you predicted, and it

Just as you predicted, and it didn't take long...

(link...)

Seems like we are coming around to the idea that running against accessible health care is a non-starter.

Maybe someday running against gun safety will be the same.

bizgrrl's picture

Those people (our political

Those people (our political representatives) are so creepy.

Dahlia's picture

Amen

Creepy and demented.

Finn Mattson's picture

All Obama's good intentions notwithstanding

All Obama's good intentions notwithstanding:
From the White House Fact Sheet, related to licensing and background check requirements for firearms sales at
(link...)
"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."
In other words, any time an individual sells even one firearm, they could be subject to prosecution based on some "other evidence" or "other factors" which may or may not be known to the seller. This falls directly under the void for vagueness doctrine of American constitutional law ("Criminal laws which do not state explicitly and definitely what conduct is punishable for example are void for vagueness" (link...)). The Obama administration just can't resist political grandstanding that gives the tin foil hatters all the fuel they need to burn down this proposal.

R. Neal's picture

"I know it when I see it."

"I know it when I see it."

(United States Supreme Court Justice Potter Stewart commenting on obscenity in relation to pornography, which seems applicable here on several levels.)

Somebody's picture

No, it's time to be serious.

You're linking to a press release and claiming it doesn't meet legal standards for specificity. That's either daft or disingenuous. Even with that, you're ignoring the statement of fact (included in your own quotation!) that "courts have upheld convictions [emphasis mine] 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." This in itself refutes your subsequent claim about "void for vagueness." I'm going to assume that you're not actually that daft, which just leaves disingenuousness as an explanation. Let's just tie a knot in it and stop that. It's time to be serious about this issue.

Somebody's picture

The actual ATF guidance

Here's the actual ATF guidance that has been published on whether you're conducting private sales or engaged in business that requires a dealer's license.

Here are my takeaways.

First, the federal law has always been vague in this area. This guidance is intended to clarify it based on existing legal precedent, but isn't any sort of new law.

Second, the guidance is pretty reasonable. If you're liquidating your collection, or selling old guns to get new ones to upgrade your collection, or you're selling one of your guns to family or a friend (or even a stranger), no problem. You don't need a dealer's license.

If you're buying and re-selling, or otherwise selling guns as a way to make a little money on the side, you need a license. It's not that hard.

Finally, a private seller always has the option of working with a licensed dealer to facilitate a private sale, usually just for a small fee. Frankly, although it's not legally required, even if I were selling just one gun, that's what I would do, especially if it was to a stranger, but I'd do it even if it was to a friend or family member. Going through a licensed dealer gets a background check done, and it also creates documentation that I no longer have the thing. If something bad happens with it later, I don't have to answer any questions, either to the police or to my own conscience.

None of this is unreasonable, and for most people, if they see this is what it's all about, wouldn't have any problem with it. It doesn't take away anyone's guns. It doesn't prevent any law-abiding person from buying or selling a gun. It does, however, make it just a little bit harder for people who shouldn't be buying guns from going off the grid to get one.

Does it do enough? Not really. Would it be better if the law itself made clear delineations? Absolutely. That's why we need more people in Congress who aren't rented by the NRA to act. The current Gun Control Act was passed in 1968, before the NRA was bought by the gun manufacturers and started its irrational, absolutist stranglehold on Congress. With that as the reality, this sort of administrative clarification is probably the extent of what's possible, because despite the rhetoric, administrative clarification of vague statutory language is quite routine and well within the bounds of the Constitution's separation of powers.

Mike Knapp's picture

John Yoo weighs in

John Yoo in the Federalist Society. One hand with a pen, the other feverishly twisting a thumb screw.Obama's Gun Rules and the Constitution

Obama’s efforts to extend the reach of the regulatory state to those who sell only a small number of guns a year may prompt the courts to re-examine and narrow Raich, especially because of the presence of the constitutional right to bear arms. In his regulatory overreaction to recent shootings, Obama may begin the erosion of the powers of his treasured welfare state.

Somebody's picture

Overreach

The problem with arguments and accusations of overreach in this case is that there is none.

The executive branch must, to some extent or another, interpret what they're handed by Congress. Even in the case of the ACA, which was criticized for its length and density, had vagueness that required executive interpretation. Famously, when conservatives tried to exploit that fact last year in an attempt to derail the federal exchanges, the Supreme Court in fact deferred to the need for executive interpretation, particularly in a case where the Congress had left confusing or vague instructions in the law.

When you read the ATF's guidebook, it's a reasonable attempt to clarify a vague delineation in the law. Justice Scalia would gladly write a ficionalized argument on how this is overreach, but I suspect it would be in a dissent opinion. That's if it even makes it to the Supreme Court.

Ironically, Congress' inevitable unwillingness to provide funds for enforcement along with the ATF's awareness of the politics, means it's not very likely that the NRA will find its ideal plaintiff to bring a case that isn't ridiculous on its face. Since the guidance itself is not regulation, an actual case of enforcement will be needed to have standing to bring suit. Without the right enforcement scanario, even the NRA and their buddies aren't going to want to bring a case that would hand them certain defeat.

Anonymoose's picture

HOW do they enforce it

How does the government decide if the guy in the allwy selling guns needs a license unless the government has an ATF agent in every alley? most guns used i cries are stolen and traded off in these kinds of dealsn, ot sold in the open atg un shows.

fischbobber's picture

Perhaps......

They could get your grammar to help. Maybe she could provide some clarity of meaning and purpose.

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