The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Most of President Obama's new "executive actions" about guns are suggestions. Some of the suggestions deserve widespread support. One provision, aimed at Social Security beneficiaries, could be unlawful, depending on details yet to be determined.
The most legally problematic part of the White House statement involves persons who are, in the terms of Gun Control Act, "adjudicated as a mental defective." 18 U.S. Code sect. 922(g)(4). Under the Social Security Act, a beneficiary can designate a personal representative to manage payments and interactions with the Social Security bureaucracy; for example, a widow who has no experience in financial affairs might designate a family member as her representative.
Should any Social Security beneficiary who has designated a personal representative be considered "adjudicated as a mental defective"? This question was raised by an Obama administration proposal in 2015. It was resisted by a bill introduced in the U.S. Congress. Imposing a gun ban on Social Security beneficiaries who have designated a financial representative would contradict almost half a century of established interpretation of the Gun Control Act of 1968. Nobody who advocated for the 1968 gun law suggested that it would have any impact on Social Security beneficiaries.
The Tuesday White House "executive action" regarding Social Security was simply an announcement of a plan to promulgate a regulation according to the ordinary process. Because a new regulation has not yet been published in the Federal Register, it is impossible to say whether the White House plan is constitutional. The devil will be in the details.
Other provisions of the White House announcement are praiseworthy. The president has assigned many additional FBI staff members to process background checks for firearms purchasers. The staff will operate 24/7. While most checks are completed quickly, some require additional investigation, because records are incomplete.
This is a good example of how performance standards improve bureaucratic performance. Under current law, the FBI's ability to veto a firearms sale expires three business days after a requested sale is submitted. So the FBI has the incentive to research records expeditiously. The president's assignment of additional personnel will assist the FBI's important mission of processing firearms purchase requests.
The first item in the White House press release about executive actions involved firearms dealers. According to the Gun Control Act, every person who is "engaged in the business" of dealing firearms must have a Federal Firearms License. Conversely, persons who are not "engaged in the business" may not be issued a Federal Firearms License to deal firearms. What does "engaged in the business" mean? The law-making branch has provided the definition: "The term 'engaged in the business' means-…(C) as applied to a dealer in firearms, as defined in section 921(a)(11)(A), 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." 18 U.S. Code sec 921(a)(21).
The White House "executive action" accurately summarizes court cases interpreting this statute. For example, it does not matter where the sales take place: at a store, a gun show or by Internet. Under existing law, there are no loopholes; the rules are the same regardless of where the sale takes place. There is no quantity of sales within a given period that requires the seller to have a FFL. One or two sales might be found, by a jury, to be part of "a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms." Conversely, the sale of many firearms, over a long period of time, might be found to be "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."
Persons with a Federal Firearms License have many obligations not applicable to non-licensees. For example, licensees must contact the FBI (or a state counterpart) to request permission of a sale. But non-licensees are forbidden to make such requests.
In the 1990s, the Clinton administration drastically reduced the number of Federal Firearms Licenses. Under the theory of the time, a person who sold only several guns per year was not "engaged in the business." Thus, such a person could not have a Federal Firearms License.
The Tuesday White House statement does not change any federal law about who is required to obtain a FFL. Rather, it restates existing law, as interpreted by the courts.
Even so, the White House statement has the potential to constructively improve the situation for low-volume firearms dealers. It may encourage the Bureau of Alcohol, Tobacco, Firearms and Explosives to be less restrictive in granting Federal Firearms Licenses to low-volume dealers. This repudiation of Clinton-era gun control is constructive. Although the White House announcements do not claim to (and could not) purport to change the law, the new approach should allow for the restoration of FFLs that were revoked by the Clinton administration.