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 Foter.com / 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.