Biden’s Plan for Expanded Gun Buyer Background Checks Is Legally Dubious

President Joe Biden on Tuesday issued an executive order that the White House says will move federal regulation of gun sales “as close to universal background checks as possible without additional legislation.” The order relies on a legally contentious redefinition of who qualifies as a gun “dealer” and therefore must obtain a federal license and comply with related rules, including customer background checks.

Federal law defines a gun dealer as someone who is “engaged in the business of selling firearms,” which until last year was defined as “devot[ing] 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.” The 2022 Bipartisan Safer Communities Act excised “with the principal objective of livelihood and profit” and replaced it with “to predominantly earn a profit.”

As the Congressional Research Service explains, that change was “intended to require persons who buy and resell firearms repetitively for profit to be licensed federally as gun dealers, even if they do not do so with ‘the principal objective of livelihood.'” According to the amendment’s supporters, “there was confusion” about whether the definition of “engaged in the business” covered “individuals who bought and resold firearms repetitively for profit, but possibly not as the principal source of their livelihood.” The statutory definition still explicitly excludes “a person who makes occasional sales, 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.”

Biden’s order does not say exactly how he intends to expand the number of people who are classified as dealers. Instead it instructs Attorney General Merrick Garland, whose department includes the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), to “clarify the definition of who is engaged in the business of dealing in firearms.” Garland may do that through “rulemaking, as appropriate and consistent with applicable law.”

Back when Biden was vice president, the Obama administration considered a rule that would have covered anyone who sells 50 or more guns a year. “While the White House Office of Legal Counsel and then–Attorney General Eric H. Holder Jr. initially concluded the regulation was legally defensible,” The Washington Post reported in 2015, “some federal lawyers remained concerned that setting an arbitrary numerical threshold could leave the rule vulnerable to a challenge.” ATF officials “objected that it would be hard to enforce and that it was unclear how many sellers would be affected by the change.”

Unfazed by those concerns, Vice President Kamala Harris pitched an even more ambitious idea when she ran against Biden for the 2020 Democratic presidential nomination. Under her plan, a hobbyist or collector who sold five or more guns in a single year—one-tenth the cutoff considered under Obama—would have been required to obtain a federal license and conduct background checks. That proposal was plainly inconsistent with both the original and amended versions of the law.

Whatever rule Garland comes up with, it will be aimed at accomplishing something that Congress has repeatedly declined to do: require background checks for gun sales that are currently considered “private.” That plan is consistent with Biden’s other attempts to impose gun control by executive fiat.

Any “arbitrary numerical threshold” would ignore the clear congressional intent to leave hobbyists and collectors alone. It also would ignore the requirement that a dealer be engaged in a “regular course” of “repetitive purchase and resale,” motivated mainly by profit. To survive the inevitable legal challenges, Garland’s regulations will have to take those criteria seriously.

Assuming that the Biden administration can produce a rule that passes legal muster, would it be worth the effort? There are several reasons to think that expanding the background-check requirement would not produce the public safety benefits that Biden imagines.

As those skeptical ATF officials noted during the Obama administration, a wider definition of gun dealers “would be hard to enforce.” These are, after all, private sales, which by their very nature are difficult to detect, especially if they involve just a few guns a year.

The evidence indicates that state laws requiring background checks for private sales, which in practice means they must be completed through federally licensed dealers, are widely flouted by gun owners who object to the added expense and inconvenience. It seems unrealistic to expect stronger compliance with a requirement that gun owners become federally licensed dealers before they are allowed to dispose of their property.

The president says he wants to prevent mass shootings. But mass shooters typically do not have disqualifying criminal or psychiatric records, meaning they would not be stymied by background checks. Many pass background checks before they commit their crimes, while others obtain guns from relatives. According to a National Institute of Justice report on public mass shootings from 1966 through 2019, just 13 percent of the perpetrators obtained firearms through illegal transactions. Since those sales were already illegal, it is doubtful that additional restrictions would have made a difference.

Biden also aims to prevent “daily acts of gun violence.” But ordinary criminals generally obtain firearms from informal sources, such as friends, acquaintances, relatives, and the “underground market,” that are unlikely to be affected by new regulations. Unsurprisingly, a 2019 study found that California’s 1991 expansion of background checks “was not associated with a net change in the firearm homicide rate over the ensuing 10 years.”

When gun buyers are flagged by background checks, that does not necessarily mean they pose a threat to public safety. As defined by federal law, “prohibited persons” include millions of Americans with no histories of violence, such as cannabis consumers and other illegal drug users, people convicted of nonviolent felonies, and people who were subjected to involuntary psychiatric treatment but never deemed a threat to others.

Would-be gun buyers who fail background checks are rarely prosecuted for illegally trying to purchase a firearm. “These cases lack ‘jury appeal’ for various reasons,” noted a 2004 report from the Justice Department’s inspector general. One of those reasons: “The factors prohibiting someone from possessing a firearm may have been nonviolent or committed many years ago.”

When unauthorized sales go through before background checks are completed because the allotted time has expired, the ATF often takes its time in retrieving those guns. The inspector general’s report noted that ATF agents “did not consider most of the prohibited persons who had obtained guns to be dangerous and therefore did not consider it a priority to retrieve the firearm promptly.”

Background checks, in short, do not pose a serious obstacle for mass murderers or run-of-the mill thugs and usually flag people whom prosecutors and ATF agents do not view as dangerous. Naturally, Biden wants more of them.

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