This week, President Obama announced a package of proposals with the ostensible goal of stemming gun crime in America. Unfortunately, however, the proposals represent a mishmash of ideas that lack a solid logical nexus to the problems they’re being offered to solve. President Obama even acknowledged this incongruity himself when he admitted that the tragic shootings he emotionally invoked would not have been prevented by his recommendations.
But faced with a Congress that fundamentally disagrees with the president’s views on gun control, his authority to act is limited, and these proposals are proof. The full “Executive Action” plan released by the White House can be found here, but I thought it would be useful to sum up the major points.
“Engaged in the Business” of Selling Firearms
One of the primary goals of the Obama Administration has been expanding the National Instant Criminal Background Check System (NICS). The president and his gun-control allies have long called for universal checks in order to close the (non-existent) “gunshow loophole,” but Congress has thus far refused to go along (and for good reason).
Still, the president gave the impression during his remarks that he would use his executive authority to expand the background check system by reconsidering what it means for people to be “engaged in the business” of selling firearms. For almost 50 years, the ATF regulations have interpreted this somewhat vague phrase by distinguishing those who sell guns commercially as a means of livelihood and those non-commercial sellers who transfer the odd gun every so often. Commercial sellers are required to perform background checks through the NICS system, while non-commercial private sellers are subject to a federal statute requiring that the transferor not know or have reason to know that the recipient of the weapon is prohibited from having it. Every transfer, in other words, is currently regulated by federal law. The only difference is which law applies.
While President Obama’s announcement and the action plan released along with it suggested a move to broaden the category of transferors that are required to put customers through the NICS system, it’s not clear that there has been any change at all.
As Jonathan Adler writes at The Washington Post, there hasn’t been a new ATF rule issued making any substantive change to the government’s interpretation of what it means to be “engaged in the business.” The criteria President Obama and Attorney General Loretta Lynch gave for how they would be assessing whether someone is engaged in the business of selling firearms closely mirror language the ATF included in a recently issued “guidance document.”
The guideline document represents an outline of current federal law, including caselaw based on the longstanding interpretation of the statute, rather than a change. In other words, as Adler writes, this proposal, the centerpiece of President Obama’s plan, may not have any effect on the law at all:
According to the White House, the new ATF guidance is intended “to ensure that anyone who is ‘engaged in the business’ of selling firearms is licensed and conducts background checks on their customers.” The ATF is achieving this not by issuing new regulations (re)defining what it means to be “engaged in the business” of selling guns under federal law. Instead, the ATF issued a guidance document that simply explicates what this legal requirement means, providing examples of the sorts of things that would indicate that a given individual is in the gun business, rather than conducting the occasional personal sale as a hobbyist or as part of an estate liquidation, or something of that sort. According to both the White House release and the ATF guidance, the various indicia identified in the guidance are, in turn, based upon what federal courts have found in relevant cases. (The relevant court decisions are not cited or otherwise identified in the document, and I have asked both ATF and the White House for more information on this point.)
Taken at face value, the new ATF guidance is thus nothing more than a restatement of existing legal requirements. Put another way, it merely identifies those who are already subject to the relevant federal requirements and does not in any way expand the universe of those gun sellers who are required to obtain a license and perform background checks. In other words, it is — as the document says — a guidance, and not a substantive rule. It has no legal effect.
In the event that the administration attempts to enforce the law as if there has been a substantive change, Adler points out that there would be an immediate legal challenge:
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. Courts reviewing agency actions are more concerned with the substance of what an agency does than what the agency calls it. So if one were to conclude that the new ATF guidance is really an expansion of existing regulatory requirements, it would be legally invalid under the Administrative Procedure Act because ATF did not go through the relevant rulemaking requirements.
Our own David Kopel, who recently released a paper on the state of gun control in America, agrees with that understanding of the ATF’s interpretation and also argues that President Obama’s commitment to ensuring that everyone who should have a federal firearms license is able to attain one is actually a reversal of a Clinton-era program of taking licenses away from people who were considered to be selling too few firearms to justify the issuance of a license.
Despite the rhetoric, then, President Obama’s proposals on background checks do not seem designed to upset the status quo in any meaningful way. Whether they’ll be enforced in some new way that raises legal concerns remains to be seen.
More worrisome are the president’s recommendations on mental health and their potential to expand the negative consequences of seeking treatment for mental health problems. Despite acknowledging that mentally ill Americans are far more likely to be victims of violence than perpetrators, and professing a desire not to stigmatize people who seek mental health treatment, the president’s proposals threaten to do exactly that.
Federal law prohibits people who have “been adjudicated as a mental defective,” from possessing firearms. Traditionally, “adjudicated” has been seen as requiring some measure of judicial process, and mental health patients who had not been adjudicated mentally ill by a court could still rely on the patient protection provisions of laws like HIPAA. But over at The National Review, Josh Blackman argues that while President Obama’s proposals will have little, if any, impact at the federal level, they do seem to pave the way for anti-gun state governments to drastically expand the definition of “mentally defective” for purposes of the NICS background system:
Yesterday, the Department of Health and Human Services announced that it would modify HIPAA regulations to allow state health agencies to disclose personally identifiable information of a “mental[ly] defective” individual directly to NICS. On its face, the regulation doesn’t require anyone to disclose this information, and merely allows certain entities that “are responsible for the involuntary commitments or other adjudications” to submit this information to the federal database. But on page 38 of the rule, HHS notes that “this final rule does not preempt State or other laws that may require reporting to the NICS.” In English, that means that while the executive action does not require entities to report this information, progressive states are free (and indeed invited!) to mandate that doctors collect and report this information.
Along with the president’s press conference Tuesday, Attorney General Loretta Lynch sent letters to 50 governors “permitting” them to report the names and information of such individuals from their states to the federal government. The NICS database can be expanded by leaps and bounds, through the actions of cooperative states, without the need for any congressional action. Supporting governors can take a hint. In contrast, Texas governor Greg Abbott tweeted “come and take it.”
Understandably, many in the mental health community are wary of policies that will further stigmatize mental illness or impose conflicts of interest on mental health professionals unsure whether they’re obligated to report their patients to the government.
The president also called on Congress to increase spending for mental health services by $500 million.
Social Security Administration
President Obama also suggested that the NICS system would start incorporating information from the Social Security Administration to prohibit people who are mentally incapable of managing their benefits from purchasing firearms. The action plan released by the White House insists there must be an adequate process for beneficiaries who lose their right to bear arms to contest the decision, but at this early stage it’s unclear what that process will look like.
President Obama’s plans to expand the meaning and scope of the federal prohibition on firearm possession by “mental defectives” is concerning. Few would argue that dangerous people, including violently mentally ill people, should have easy access to firearms, but the problem quickly reduces to how we define what it means to be dangerously mentally ill, who gets to make these determinations, and what recourse exists for individuals who feel they have been unjustly denied their rights.
Unfortunately, President Obama’s proposals do not evince a serious concern about these process issues. The proposals run the risk of further stigmatizing mental health and drastically increasing the liberty cost of seeking treatment. Given the ease with which point-of-sale gun laws are circumvented, the danger in pushing people away from treatment is plainly a grave concern that deserves more attention.
Whether it’s “potential terrorists” from the federal no-fly list or “potentially dangerous” mentally ill citizens reported by their doctors or government bureaucrats, there must be an adequate process in place to protect the rights of people who have not been convicted of any criminal behavior.
National Firearms Act Items
One interesting change in federal firearms law strangely didn’t appear in either the president’s remarks or the action plan released by the White House.
Under the National Firearms Act of 1934, people who wish to acquire, transfer, or manufacture certain weapons and accessories, including machine guns, short-barreled rifles and shotguns, and silencers/suppressors, must submit to the ATF fingerprints and passport photos, undergo a background check, and receive a “certification” from a chief law enforcement officer (CLEO) in their jurisdiction.
If the CLEO in an applicant’s jurisdiction refused to authorize the transfer, the ATF would refuse the application. In other words, the ATF gave local law enforcement a veto power over the possession of NFA items. In order to evade the CLEO requirement while still complying with the law, some enthusiasts created what are known as “gun trusts,” which are not subject to the CLEO certification requirement.
Announcing his desire to ensure that everyone involved with NFA-regulated items undergo adequate screening, President Obama announced that he was directing the ATF to enforce the photo, fingerprint, and background check provisions on the trusts as well as the individual applicants. In effect, this would abolish the procedural distinction between an NFA gun trust and an individual applicant.
However, neither President Obama’s remarks nor the action plan mentioned another change from the same new ATF rule promulgation: the abolition of the CLEO certification requirement.
The goal of this final rule is to ensure that the identification and background check requirements apply equally to individuals, trusts, and legal entities. To lessen potential compliance burdens for the public and law enforcement, DOJ has revised the final rule to eliminate the requirement for a certification signed by a chief law enforcement officer (CLEO) and instead require CLEO notification.
So, while it will now be more burdensome for individuals to acquire NFA items through a gun trust, the Obama Administration has also eliminated a bureaucratic burden that incentivized individuals to form the trusts in the first place.
President Obama’s proposal also contains a push for “smart gun” technology that would theoretically ensure guns can only be operated by their owners, a clarification of the reporting obligations for situations in which gun shipments are lost or stolen, and calls for increased "coordination" between federal prosecutors and state and local officials to combat domestic violence.
The prosecution of domestic violence offenses is traditionally a state matter, and it's unclear what "coordination" with federal prosecutors will entail. The clarification over which party bears responsibility for reporting stolen gun shipments or inventory is unobjectionable. Faith in smart gun technology is largely unjustified at this point, as the technology is underdeveloped and the market seems to have very little interest in it. It’s conceivable that bulk government purchases could “stimulate” that market, but for now smart gun mandates remain largely speculative.
For all the pomp and ceremony, nothing in the president’s proposals is going to put a dent in U.S. gun crime or even substantially change the federal legal landscape. In that sense, apoplectic opponents and overjoyed supporters are both probably overreacting. President Obama’s clarifications on the FFL system and the ATF’s removal of a substantial burden on individual enthusiasts wishing to procure NFA-regulated items may even be improvements over the status quo (in deep contrast to the tone of the president’s emotional message).
The mental health proposals are more worrisome, and the behavior of state governments and federal healthcare agencies in response to an expansion of their power to circumscribe the rights of people seeking mental health treatment will require close scrutiny (and perhaps litigation) to ensure that people diagnosed with mental illnesses are not being unfairly deprived of their rights.
The most disappointing aspect of the proposals is that there is so little in them to suggest that President Obama is willing to address any of the major drivers of gun crime in America. The sad irony is that President Obama could do far more to protect American lives and clean up our streets by ending the drug war than by expanding background checks. Criminals, from gang members to spree shooters, have no trouble passing checks, finding straw purchasers, or simply buying guns on the inherently unregulated black market. As long as there are hundreds of billions of dollars changing hands in the illicit drug market every year, the black market for firearms and the violent competition for market shares will continue to claim thousands of lives annually and make a mockery of the idea of gun control.
Gun crime is a serious problem, and it deserves attention. Unfortunately, these proposals do not offer effective solutions.