Whether President Barack Obama’s executive actions on guns are legally permissible depends on how close it adheres to statute.
For example, the same laws already apply to a gun seller, whether it’s in a gun shop, at a gun show or over the Internet, said David Kopel, an adjunct professor of advanced constitutional law at Denver University, and research director at the Independence Institute.
President Barack Obama speaks about gun control during a meeting with U.S. Attorney General Loretta Lynch in the Oval Office at the White House January 4, 2016 in Washington, DC. President Obama talked about his options using executive actions on stricter gun control laws. (Photo by Mark Wilson/Getty Images)
The legal question involves the statutory definition of a gun dealer, as someone whose “principle objective of livelihood and profit” relies on the sale of guns. So, no executive action can extend beyond that. These words and their legal interpretation could be the deciding factor.
“There are a few statements about proposed regulations. Whether the regulations are lawful depends on whether they are consistent with the text of the statutes enacted by Congress,” Kopel told TheBlaze. “Regulations can add detail to the gray areas in a statute, but they can't contradict the statute. So until the regulations are actually published, it is impossible to say whether they are lawful or not.”
The White House press release Monday night was not specific about how the regulations would differ from current law, other than to say, “The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is making clear that it doesn’t matter where you conduct your business—from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks.”
The law is already consistent across all venues of gun sales, Kopel said. “Of course that's true, and it's been federal law since 1968.”
The law U.S. Code 18, Section 921 defines who can be regulated as a gun dealer, “a person who devotes time, attention, and labor to manufacturing firearms as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the firearms manufactured.”
The law continues, “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.”
Obama will be speaking about the actions in an East Room event Tuesday.
“Can he direct the ATF to look at details of the statute? The answer is yes, as long as it is consistent with what the statute says,” Kopel said. “If they try to say it extends to anyone selling more than one gun, no.”
White House press secretary Josh Earnest said the administration anticipates that the gun lobby will have a “creative legal theory” to oppose the actions.
“That's why the president once to be sure that the recommendations he has received and the executive actions that he carries out are going to stand up in a court of law,” Earnest said Monday. “A lot of work that has gone on has been to ensure that we would have confidence in the legal basis of these actions.”
Obama could ask the ATF to clarify the statute, said John G. Malcolm, a former deputy assistant U.S. attorney general.
“If he wants to expand the definition of businesses of the firearms dealer, it depends on how he would do that,” Malcolm, now with the Heritage Foundation, told TheBlaze. “It would have to be licensing subject to the regulatory framework under statute. If the action effectively changes what it means to be a firearms dealer, he can’t rewrite the federal statute.”
"If the regulations are challenged in court, as expected, the process will play a big role in how defensible the law is," said Kopel.
Further, for presidential candidates to pledge to instantly undo the executive action is not the most reliable promise.
“If they go through the normal process of doing this, put it in the Federal Registry, allow public comment, and respond to the comment, that will take a few months, it will be very tough to challenge,” Kopel said. “For the next president to undo, it would take months to undo because it would go through the same process.”
But, the Obama administration could make matters more difficult for itself.
“If the administration comes up with a new interpretation, it will be a lot harder to hold up,” Kopel said.
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