Obama’s faceplant on gun-control EOs
posted at 8:41 am on January 5, 2016 by Ed Morrissey
Give him this much credit — no one puts the lame in lame duck like Barack Obama. After the terrorist attack in San Bernardino, Obama promised to use his executive authority to make major advances in gun control, even though the real issue in that mass shooting was how the Obama administration botched the visa vetting of one of its perpetrators, a self-proclaimed adherent of violent jihad. USA Today reminds readers of the promises made by Obama and his White House over the past few weeks about the actions he would take: guaranteeing that every firearm sold would have a background check, banning “large capacity” magazines, and banning firearm sales to people on the no-fly list.
What did Obama actually deliver? Mostly a restatement of existing law, with one important and potentially dangerous twist:
• Hiring more people to run the FBI background check system, so the government can be “processing background checks 24 hours a day, 7 days a week.”
• Requesting from Congress an additional $500 million to increase access to mental health care.
• Clarifying that people selling guns over the Internet can still be required to conduct background checks on buyers if they are “engaged in the business” of selling guns, not just a hobbyist.
The first two of these bullet points qualify for the “what took you so long” category. Those aren’t exercises in executive power; they’re admissions of incompetent governance. It took seven years for Obama to realize the FBI background-check department is understaffed? Similarly, we have been discussing issues of mental health since at least Newtown three years ago, and only now has Obama gotten around to requesting more money in the budget to deal with it.
The third point does reflect a use of executive authority, one that may be dangerously ambiguous. Obama and Attorney General Loretta Lynch have promised more scrutiny over the definition of “gun dealer,” but can’t define it specifically themselves, as the New York Times notes in its report on the disappointing nature (to the NYT, anyway) of Obama’s actions:
But faced with clear legal limitations on his authority, Mr. Obama will take modest steps that stop well short of the kind of large-scale changes to the gun trade that he unsuccessfully sought from Congress three years ago. That legislation would have closed loopholes that allow millions of guns to be sold without background checks at gun shows or in online firearm exchanges.
Instead, Mr. Obama will clarify that existing laws require anyone making a living by selling guns to register as a licensed gun dealer and conduct background checks. White House officials said the president would note that criminal penalties already exist for violating those laws. …
Under his plan, the White House said, officials from the Bureau of Alcohol, Tobacco, Firearms and Explosives will begin contacting gun sellers to let them know of new standards to “clarify” who would be considered a regulated dealer — taking into account factors such as whether someone has a business card, uses a website or sells guns in their original packaging.
But there will be no set number for defining how many guns sold would make someone a “dealer” — a standard that some groups had pushed as essential to giving the changes more teeth. White House officials said someone could sell as few as one or two guns yet still be considered a dealer whose sales are subject to background checks.
This lack of objective definition matters a great deal to those on the cusp of enforcement. It costs a lot of money to become a federally licensed firearm dealer, and the penalties for operating as such without the license are severe. If the line cannot be drawn clearly, the impact of this prosecutorial discretion — and this is exactly what Obama’s proposal is — will be to drive some hobbyists out of the market. That might help larger dealers in the long run, but probably won’t have any impact on gun sales.
In fact, none of these
changes restatements of existing law would have had any impact on the shootings that Obama cites for the need to take unilateral action. Valerie Jarrett all but admitted it:
But officials said it was impossible to predict whether the new directives would have made any difference in recent shootings, such as the one in San Bernardino, Calif.
“We can and must do something about it,” Valerie Jarrett, a top adviser to Mr. Obama, said on Monday. “Our politics unite us together when we are taking on other epidemics, so why not gun violence?”
In other words, let no crisis go to waste. Only in this case, Obama isn’t actually doing anything. Even the nuanced promise to use prosecutorial discretion to harass hobbyists seems unlikely to pan out. Don’t forget that this is the same administration that won’t follow up on failed background checks because, in Joe Biden’s words, “we simply don’t have the time or manpower to prosecute everybody who lies on a form, that checks a wrong box, that answers a question inaccurately.” They’ll offer up a test case or two, but the subjectivity of the prosecution will likely make courts skeptical of the new “definition” in use, and the DoJ will lose interest — especially since they only have a year to go in Obama’s term anyway.
Basically, this is Gun Control Theater — at least thus far. The most likely impact will be to make some lawyers richer, and to perhaps make gun dealerships the fastest-growing part of the Obama economy.
Update: Be sure to read Kyle Wingfield’s analysis in the Atlanta Journal-Constitution. He worries that the disillusionment when the Left realizes what a retreat this actually is may prompt a second attempt at executive overreach. Both Kyle and the Locke Foundation’s Jon Sanders extend my thoughts on cronyism and arbitrary prosecution as well.