President Obama’s executive action to expand gun sale background
checks has opened up a legal can of worms, specifically the president’s
bid to broaden the definition of who’s a dealer -- and therefore must
get a license and conduct background checks.
Under current federal law passed by Congress, only
federally licensed dealers must conduct background checks on buyers.
The law does not specify whether this applies to online sales and other
areas -- so those selling or trading guns on websites or in informal
settings such as flea markets often don’t register.
As the centerpiece of Obama's new gun push, the
Bureau of Alcohol, Tobacco, Firearms and Explosives on Monday night
issued updated guidance that now deems anyone “in the business” of
selling guns a dealer, regardless of where they sell.
All of which puts a constitutional spotlight on
Obama’s actions, raising questions of interpretation that may have to be
settled by the courts.
“Mr. Obama will now require that anyone who sells a
gun, that is even an 'occasional' seller, will be required to perform a
background check. By defining what an 'occasional seller' is, the
president is essentially interpreting the law, a job reserved for the
courts,” Judge Andrew Napolitano, Fox News' senior judicial analyst,
said in a
FoxNews.com opinion piece.
Until the courts weigh in, it falls on the sellers to figure out who technically is "in the business" of dealing.
It's a tough question -- and one with serious
implications. As Obama noted during remarks at the White House Tuesday,
failure to follow these rules can result in criminal prosecution.
While the new guidance says collectors and gun
hobbyists are largely exempt, the exact definition of who must register
and conduct background checks is vague. Some officials suggested that
selling just one or two firearms could subject a seller to these rules.
Philip Dacey, president of the Pennsylvania Gun
Collectors Association, told FoxNews.com that while he thinks the new
orders will not have a huge impact on collectors, the devil is in the
details.
"I think [to require a license for] one or two guns
would be ridiculous, and how will you enforce it? If there’s no
paperwork trail, how would you know when people are selling one or two
guns to their neighbor?" Dacey said.
Dacey also noted that getting a federal license could
take over three months and entail a complex process involving
fingerprints, photographs and a visit by ATF agents.
The guidance says determining whether someone is
“engaged in the business” of dealing requires looking at "the specific
facts and circumstances of your activities.”
“As a general rule, you will need a license if you
repetitively buy and sell firearms with the principal motive of making a
profit. In contrast, if you only make occasional sales of firearms from
your personal collection, you do not need to be licensed,” the guidance
says.
Click here to read the guidance.
However, the document also notes the courts have deemed people dealers in some cases even if they only sell a couple guns.
“Note that while quantity and frequency of sales are
relevant indicators, courts have upheld convictions for dealing without a
license when as few as two firearms were sold, or when only one or two
transactions took place, when other factors were also present,” the
guidance says.
In a conference call with Attorney General Loretta
Lynch and White House Press Secretary Josh Earnest, senior adviser
Valerie Jarrett sought to clarify, but risked making the confusion even
greater.
“ATF will make clear that whether you are ‘engaged in
the business’ depends on the facts and circumstances,” Jarrett said,
according to
The Washington Free Beacon.
“On factors such as: whether you represent yourself as a dealer, such
as making business cards or taking credit card statements. Whether you
sell firearms shortly after they’re acquired or whether you buy or sell
in the original packaging.”
On the question of the number of guns sold, Lynch
said: “It can be as few as one or two depending upon the circumstances
under which the person sells the gun."
Adding to the questions, the background check
provision rests in the murky realm of agency "guidelines," which carry
less weight than formally issued federal regulations and can easily be
rescinded.
Republicans blasted the new guidance as a form of intimidation that would only target law-abiding citizens.
“[Obama] knows full well that the law already says
that people who make their living selling firearms must be licensed,
regardless of venue,” said House Speaker Paul Ryan, R-Wis., in a
statement. “Still, rather than focus on criminals and terrorists, he
goes after the most law-abiding of citizens. His words and actions
amount to a form of intimidation that undermines liberty.”
