Obama's Executive Actions on Guns: Vague, Legally Confusing, Useless for Curbing Gun Violence, but Possibly Useful in the Long Game of Barring More Innocent People from Gun Ownership


The actual specific policies Obama vowed to push via executive action in his big gun speech yesterday are rather narrow and ineffectual. As Doug Mataconis summed up after a thorough explanation of exactly what the (still not totally clear) proposals would actually do in practice:

jurvetson via / CC BY

there is remarkably little substance to these proposal and they are unlikely to actually capture anything other than a small amount of transfers of weapons outside of those already covered by the background check system either at the Federal or state levels, or both.

As CNN reports, some on the right and/or in the legal community find what Obama's suggesting at least legally unproblematic, while others do not:

John Malcolm, of the conservative Heritage Foundation, said that most of the actions "are not controversial or problematic from a legal stand point."…

Other actions will include requiring background checks for people trying to buy some of the most dangerous weapons through trusts and corporations, improving the efficiency of the National Instant Criminal Background Check System (NICS) and dedicating new resources to increase access to mental health treatment.

"Asking for additional resources from Congress is not controversial, asking U.S. Attorneys to focus their prosecutorial resources on going after the worst of the worst is not controversial. Asking the FBI to try to improve the background check data system (NICS) is not only non controversial it will be a very welcome thing," Malcolm said.

But conservative activist Larry Klayman said Monday night that he planned to file legal action in short order. Other challenges are expected to come…..

"Potential legal challenges will depend upon how the new regulations are actually worded, but based on what we have heard so far, challengers to the new rules will face an uphill battle because it sounds like the primary thing the President is doing is interpreting an ambiguous federal statute," said Steve Vladeck a professor of law at Washington College of Law at American University and a CNN legal analyst…..

The NRA dismissed the President's move on Tuesday and pledged to fight for gun owner rights, but did not immediately outline a planned legal challenge…

A series of interesting analyses and reactions to Obama's latest. (My initial take on his disturbing slippery-slope rhetoric ran yesterday.):

•  The New York Times has a good Q and A style lay summation of how little these actions will actually affect the scourge of gun violence, as they largely involve trying to be tougher in defining people who should already qualify as legally "engaged in the business" of firearm sales (without providing any hard and fast definition such that someone can be sure they aren't violating the law), and violating the concept of health care information privacy by having the Social Security administration report anything it knows that should legally bar gun ownership to the federal background check system. What that will accomplish 99.9 percent of the time is bar some poor sucker who was dumb enough to seek mental health care from the right to armed self-defense.

•  Jonathan Adler at Volokh Conspiracy assesses what Obama might be trying to accomplish here, after noting the aspect that it is explicitly not expanding those who are legally required to conduct checks on sales in a codified way:

could be that the administration hopes to "chill" marginal gun sales. Although a guidance document does not change the relevant legal standard, the issuance of such a document can affect behavior. Individuals who learn they are closer to the relevant legal line than they had realized might be encouraged to comply with the relevant legal requirements, or they may opt to stop selling guns…

[Another benefit to Obama could be that] To the typical, rationally ignorant voter, it may appear that the administration is doing something significant. (And insofar as Republicans complain and caterwaul about the administration's actions, this purpose is more fully achieved.)


A consequence of choosing to issue a guidance document instead of a new regulation, however, is that the guidance document cannot have legal force. That's what it means to be a guidance — and is one reason that such documents do not have to go through the rulemaking process. To be sure, sometimes agencies do one thing while saying they are doing another — issuing a new substantive regulation that changes the relevant legal requirements but calling it a guidance. Yet when agencies do this, they make themselves legally vulnerable…..

One upshot of all this is that if the new ATF action is challenged in court, the proceedings will focus on these administrative law questions and will not get into whether a more expansive definition of "engaged in the business" is lawful, let alone whether requiring background checks is consistent with the Second Amendment. The first question a court will consider is whether the ATF document is, in fact, a guidance. The administration will argue that it is, as this is the best way to make a legal challenge go away. But in arguing that the "guidance" is a guidance, the administration will also be conceding that the document has no legal effect and that it does not require anything that is not already required under federal law.

• Major gun manufacturer stocks up on the news of Obama's proposals.

•  Josh Blackman sees a sinister endgame hidden beneath the almost confusingly mild specific (or vague) proposals:

Think about what the actions as a whole accomplish. The President is building the framework for a national registry of people who are not fit to own firearms due to "mental health" concerns. By streamlining the process by which states can report this information–through waiver of HIPAA requirements–the President is signaling to blue states that they can tackle gun control at the local level, and this can ultimately be used nationally. Bloomberg and those funding this mission are no fools. Once such a database is built and tested, it will be so easy for a President Clinton to fold that into the instant background check. Additionally, deeming millions of people who are unable to manage their own finances incompetent to own guns is a significant stigmatization of the right to keep and bear arms. This could ultimately be expanded to other forms of state and federal welfare. This mission creep would be particularly insidious. Finally, funding research into the microstamping and finger-print-scanner guns will provide the basis for a future Congress to mandate these technologies for personal use…

• Many people were appalled by Obama's apparent belief that there are no laws regarding purchasing guns over the Internet. (Since Obama did not explicitly include the word "legally" in his tweet and statement, it is possible that he merely meant that the Internet makes it easier to break the law, I guess, but the Internet will continue to make it easy to keep breaking any new law or enforcement measure as well.)

• On the campaign trail, Rand Paul vows to fight "tooth and nail" to keep any of this stuff from happening. He

introduced legislation that would label any executive action put forth by Obama that deals with gun control as "advisory only" until corresponding legislation is passed by Congress. "In the United States, we do not have a king, but we do have a Constitution. We also have the Second Amendment, and I will fight tooth and nail to protect it," said a statement from Paul. The proposed bill would also make it legal for any state official or member of Congress to bring a civil lawsuit, against the President, related to the effects of any executive action on gun control.

NEXT: How Making a Murderer Helps Explain Liberals' Reaction to the Oregon Standoff

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  1. On-topic: ThinkProgress douche attempts to argue gun control on CNN

    Between the whiny voice and the utter lack of civility towards the GOP guy it’s like they found the Platonic ideal of a progressive douchebag.

  2. Step 1: This “guidance”.

    Step 2: Joe Blow, worried about losing his 2nd amendment rights as a result, doesn’t seek psychiatric help for his issues.

    Step 3: Joe Blow finally snaps, kills 5 people before being shot by cops.

    Step 4: Joe Blow’s actions used to justify more gun control.

    1. Yep, to them the dead bodies are a feature. They can’t wait to climb up on those dead bodies and stomp the boot down even harder.

  3. Of course the idea is to chill gun sales. It is about stigmatizing and otherizing gun owners as toothless redneck hillbilly social outcasts. That is the long game here.

    1. Good job they’ve done so far, posting record numbers for sellers and manufacturers. Something tells me reaffirming ATF policy ain’t gonna do what they think it will, and by they I mean Obama’s braindead backers. But that’s the point, innit? Giving the president something, anything, on which to hang his hat when he finally returns to Chicago or wherever he ends up after all’s said and done next January. If it’s the approbation of a handful of mouthbreathing progressive loyalists, so be it.

  4. asking U.S. Attorneys to focus their prosecutorial resources on going after the worst of the worst is not controversial.

    No! The American People are tired of hearing about Hillary’s damn emails!

  5. I’m sure it will all work out fine. Trust The Hopeful Changer.

  6. The mental health aspect of Obama’s order should be frightening to everyone, I think. From my understanding he is basically empowering doctors to snitch on their patients and revoke their gun ownership rights without any sort of due process.

    So on the one part of the gun issue where most people can agree – nobody wants genuinely mentally ill people to own guns – Obama naturally takes an authoritarian approach, bypassing due process and empowering bureaucrats.

    And quite frankly at this point I think that is intentional by Obama, when people on the right and people who support gun rights start complaining about this portion of his executive action, he will just say “hey, those people USED to say they object to mentally ill people having guns, but now when I do something about it, they suddenly don’t agree, because they’re racist tools of the NRA”, yada yada yada

    1. A wise man random internet nobody thought of an objection to this whole stigmatization process we’re currently undergoing…

      The drive to register potential schizophrenics/bipolar patients/depressive wives in California, track their whereabouts, deprive them of Constitutionally-enshrined rights, and forcibly admit them for several days at a time is just going to drive people who genuinely need help further into the shadows. It turns out people don’t like being treated like criminals … you’re describing a system to reaffirm the paranoia of people psychologically predisposed to paranoia.

      1. Well obviously. And obviously the government will need to root out these people and make sure they get the help they so clearly need.

  7. Judge Napolitano:

    Just what is an executive order? A presidential executive order is a written instruction to persons in the executive branch of the federal government informing them of the manner in which the president wants federal laws or regulations enforced. Executive orders do not direct private persons, or persons in the legislative or judicial branches of government. Executive orders remain in effect until abandoned or rescinded by the president who issued them or by a successor president.

    The Supreme Court has made it clear that the right to keep and bear arms is a fundamental liberty. Under the Constitution, fundamental liberities (like speech, press, worship, self-defense, travel, privacy) are accorded the highest protection from governmental intrusion.
    One can only lose a fundamental right by intentionally giving it up, or via due process (a jury trial resulting in the conviction of criminal behavior).
    Under the Constitution, Congress writes the laws, the president enforces them, and the courts interpret them.
    Presidents can no more write their own laws or impose their own interpretations upon them than the Congress or the courts can command the military.
    [emphasis mine]

  8. I swear when i glanced at that Obama photo for a second i saw this.

    1. He wishes he were that cool.

  9. If it stops even one innocent citizen from buying a gun, don’t we have an obligation to try?

  10. Given that everything Obama does is for political rather than policy-purposes… its possible the better criticism of his gesture isn’t “OMG These Stupid Proposals Wouldn’t Stop Mass Murderers!!”

    (because… what… does anyone really want to see what his “policy with teeth” might look like?)

    …but rather to laugh at him and go, “Jesus, you’re pathetic”. He’s just piling on regulation for the sake of it. Because he has no ideas. …. maybe because he’s playing (like one person suggests) a “long game” where all this bullshit adds up to some grand strategy for undermining the 2nd amendment…

    …but the fact is, he seems to be throwing spaghetti in his last year in office. Just to look like he ‘did something’.

    I think its probably almost more effective to point out to liberals that they’re being pandered to…. rather than to huff and puff and scream about how horrible it all is. Because that’s really what they want! it makes them feel like they’ve done something. “”Wow! the Yokels are frothing!! we musta got them one good there! Yay obamers!””

    That’s really the stupid game being played. Keystone was ALL about this. Zero actual policy, 100% politics. No one gives a shit about the material reality, its all about the optics and the messaging. Consequently…. stop feeding them their cheap thrills. Better to find ways to *derail* them rather than always be ‘reacting’ to stupid liberal shit and feeding their ego.


  12. My local gun store was packed.

    He’s almost a tool of the gun store lobby (such as it is). These proposals (except the mental health thing) merely force people to buy/sell guns through stores, not from private dealers

    1. not from private dealerssellers

      Part of his proposal is to vaguify what qualifies as a dealer versus just someone selling one of their own guns. Clearly intentioned to do as you say, and make the sale recordable.

      I remember reading some oh no story a couple of weeks ago about the ATF had piles and piles of old gun shop records and no easy way to search them. Never mind that sales records are only required to be kept for 20 years by dealers and only records less than 20 years are required to be turned over to the ATF after surrendering a dealers’ license say when the shop closes up. All of those records over 20 years should be shredded, not digitized. But that will never happen.

  13. I’m having a hard time accepting that the crocodile tears weren’t called immediately with howls of laughter.

  14. OT:
    Even with the ridiculous sugar subsidy, they can’t make money? WTF?

    “Hawaii’s last sugar plantation to stop growing sugar”
    “Benjamin said Alexander & Baldwin “made every effort” to avoid ending sugar growing. But he said it suffered $30 million in agribusiness losses last year and expected further red ink if no changes were made.”…..741383.php

    I don’t know how you can lose money with that sort of cronyism.

  15. Reaonoids, seriously : as someone with a mental illness, what is the best org to start getting involved with to fight for my second ammendment rights?

    Like, are there any mental illness groups that fight for your 2ns ammendment rights? Or do none do, because that would mean admitting tradeoffs exist?

    1. The Second Amendment Foundation has a good history in the courts. Alan Gura was working for them when he won Heller and McDonald.

    2. To be fair, there are a fair amount of psychiatrists who object to getting tied into gun control regulations.

      If people trying to work some shit out start thinking that their psychiatrist is gonna narc them out, then nobody is going to go see a shrink ever again.

    3. Probably second amendment groups would be happier to get the PC points from defending the mentally ill (a historically marginalized community, etc. etc.), and they know the law better. Seems like the better avenue.

  16. indirectly i was called a sociopath by my cousin for mocking obama’s tears. i thought that was even more amusing actually, but i mention this by way of saying that i had no problem with his passion. i think he deeply believes in what he’s doing and the justification he used for it. i think he’s almost all wrong, but mainly i though the tears were rather pathetic in relation to what he was offering.

    it would be like if i went to a family that couldn’t afford a $50k operation for their dying child, and offered them all the change in my pocket, thinking that would fix her right up. and it only took him how many years to do this? not to mention the underlying belief that the other side are sell-outs with no heart. call me heartless if you want, but the nra still hasn’t sent a check for my services, so i’m no damn sellout.

  17. When will drones stop killing innocent people in Yemen?

    On December 12 a bride and groom traveled to their wedding in al-Baitha province, Yemen. It was supposed to be a day of celebration. Instead, in a few seconds, their happiness was obliterated. A U.S. drone fired at the wedding procession, destroying five vehicles and killing most of their occupants. Not even the bride’s car, beautifully decorated with flowers, was spared from the carnage.

    As ever, the White House responded to press queries about the incident with only silence. U.S. President Barack Obama has issued no admission of responsibility, let alone an apology. Only after recent evidence gathered from the scene by Reprieve did officials grudgingly admit that they would look into the strike.…..index.html

    No tears from King Obama Lord of the Drones

    1. Why not blow them up?

      No one will become angry about. No one will seek revenge for it or use it as an example to make other people angry enough to oppose America. Killing innocent people happens in a complete moral vacuum and there is never any consequences for it ever.

      1. Only faggots think that Muslims might get pissed off when their friends and family are blown to bits.

      2. Burn that straw man.

        1. It’s not a straw man. For conservatards, the military can do no wrong. Just as progressives are hostile towards anyone who points out unintended or unwanted consequences of policies that they support, conservatards like John react the same way to anyone who points out unintended or unwanted consequences of military action. It is not intended, therefore it must have been caused by something else.

      3. I know you wish that human nature worked that way, but it doesn’t. Individual human beings almost always feel helpless to act against massive, uncontrollable forces. They don’t get the strength to act without joining a government or a mass movement, but the only ones in play in that region that have plans of acting globally (ie, the only ones that would bother with attacking people on another continent) are Islamic supremacists.

        Islamic supremacists are out for conquest and genocide on the basis of hate for the inferior, not outrage at injustice, and so it’s fairly irrelevant whether we kill innocent people; when we end up on their shitlist, it won’t be for being evil, it will be for not being their brand of evil. It’s like suggesting that America could have somehow avoided getting into war with the USSR or the Axis; not likely, short of allying with them or deliberately abandoning superpower status.

    2. Let’s not bicker and argue over who killed who.

  18. “…are rather narrow and ineffectual.”

    From a narrow and ineffectual mind, no?

  19. I am slightly concerned with the mental health parts of the actions. They’re not going to screw anybody over right away but they provide fertile ground for President Clinton to start hacking away at some rights.

    But mostly, my reaction was laughter at how all that presidential tough talk turned into a bunch of nothing. He’s not going to stop any murders with this, and he’s not even going to create much more government. Pro-gun advocates should mock his feeble efforts and use them to keep Congress out of the gun-grabbers’ hands, not get enraged over the tiny inroads he made and throw out a bunch of useless lawsuits that will just make you look dumb.

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