January 7, 2016

January 7, 2016 | Commentary on Rule of Law

Crocodile Tears From the President

In a passionate — indeed, at one point tearful — speech Tuesday, President Barack Obama announced that he was taking a series of “executive actions” on gun control.

We can all sympathize with the pain and loss suffered by the victims of gun violence and their loved ones. But sympathy is one thing; diagnosing the nature of the problem is another. And devising effective remedies that respect the natural rights of law-abiding citizens — in this case, as articulated in the Second Amendment — is even more difficult.

Many of the president’s proposals are not controversial from a legal standpoint. For example, he is asking Congress to fund 200 additional ATF agents to enforce existing gun laws. He also seeks $500 million to increase access to mental health care.

Gun rights advocates have long called for vigorous enforcement of existing laws. They also have noted that many of the mass shootings deplored by all Americans have been perpetrated by individuals suffering from severe, untreated mental illnesses. James HolmesJared LoughnerAdam Lanza, and Seung-Hui Cho are just some of those fitting this category.

President Obama also announced that the FBI will hire an additional 230 examiners and support staff to expedite the process of conducting background checks using the National Instant Criminal Background Check System (NICS). And he directed the FBI to partner with the U.S. Digital Service to modernize NICS — another thing guns rights advocates have called for.

He further revealed that he had directed Attorney General Loretta Lynch to write a letter urging the states to provide NICS with complete criminal history records, as well as information about persons disqualified from possessing guns because of having been“committed to a mental institution” or “adjudicated as a mental defective” or having been convicted of a qualifying misdemeanor crime of domestic violence.

None of these “actions” cross legal boundaries. Any president is free to provide guidance to federal agencies, ask Congress to appropriate money to fund his priorities, and direct his attorney general to write a letter.

But some of Obama’s other actions may be subject to legal challenge, depending on how they are implemented.

Obviously the President wishes to expand the number of sellers who must register as federal firearms dealers (which would require them to perform background checks on purchasers). But federal law provides that someone is “engaged in the business” of being a firearms dealer only if he or she “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 ….” It further stipulates that the term “shall not include a person who makes occasionalsales, 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 ….”

The president announced that ATF has “clarified” that a person can be “engaged in the business” of being a firearms dealer no matter where the transactions occur and that even a few transactions can trigger the licensure requirement “when combined with other evidence” sufficient to establish that someone is engaged in that business.

That’s nothing new. Several courts have already held that it is what you do, not where you do it, that matters, and that other factors, such as holding yourself out as a firearms dealer, ought to be taken into consideration when making such a determination. This “clarification,” then, changes nothing in existing law. But if the administration does try to unilaterally rewrite the law, a court challenge is certain, and it would likely succeed.

The announcement that the Social Security Administration will begin the process of promulgating a rule to ensure that NCIS receives “appropriate records” is also potentially problematic. Such records might extend beyond those pertaining to people who have been determined to be mentally ill by a judge.

The president has suggested that such a rule should include people “who have a documented mental health issue, receive disability benefits, and are unable to manage those benefits because of their mental impairment.” What about veterans treated for PTSD or people prescribed anti-depressants by a psychiatrist? Will they now have “a documented health issue” that precludes gun ownership? If a retiree receives social security benefits through a “representative payee,” will that person be deemed mentally impaired and therefor unfit to own a gun? Can a government bureaucrat take away a constitutional right on these bases without a judicial hearing? That remains to be seen.

Gun violence is certainly a legitimate subject for public debate. Many on the Left assume the answer is fewer guns. Yet gun-related deaths (other than suicide) have declined over the last several years — even as gun ownership has risen dramatically.

Increasingly, law-abiding citizens are choosing to exercise their Second Amendment rights to protect themselves and their families, recognizing that there may come a time when they are confronted by an armed assailant and seconds matter — but the police are minutes away. They should not be prevented from doing so.

About the Author

John Malcolm Director, Edwin Meese III Center for Legal and Judicial Studies, and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Rule of Law

This piece first appeared in The American Spectator