by Joseph Greenlee

Earlier this year President Obama announced “a series of common-sense executive actions” to address our “gun violence epidemic.” Although there is no gun violence epidemic, as gun violence has declined dramatically over the last twenty years, President Obama promised to take the following actions:
1.    Anybody in the business of selling firearms must get a license and conduct background checks or be subject to criminal prosecutions.  It doesn’t matter whether   you’re doing it over the internet or at a gun show.”
2.    We’re also expanding background checks to cover violent criminals who try to buy some of the most dangerous firearms by hiding behind trusts and corporations and various cutouts.” 
3.    We’re also taking steps to make the background checks system more efficient.” … “We’re going to hire more folks to process applications faster, and we’re going to bring an outdated background check system into the twenty-first century.”
4.    We’re going to do everything we can to ensure the smart and effective enforcement of gun safety laws that are already on the books.”
5.    We’re going to do more to help those suffering from mental illness get the help that they need.” … “We’re going to invest $500 million to expand access to treatment across the country.”
6.    We’re going to ensure that federal mental health records are submitted to the background check system and remove barriers that prevent states from reporting relevant information.”
7.    We’re going to boost gun safety technology.”

Overall, the president’s executive actions on guns consist of a combination of executive overreach and feel-goodism, with only a hint of substance.
At this point, it appears that the primary thrust of the executive actions is the potential redefinition of who is “engaged in the business” of selling firearms.  This is attempted by issuing a new Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Guidance, which appears to simply recite current law but touts (uncited) case law that promotes and upholds a broad interpretation of the term “engaged in the business.” 

The purpose of redefining the term is to broaden it to an extent that could possibly classify anyone who sells a firearm as a dealer, thereby scaring legitimate private sellers into believing they may be required to obtain a license.  This could reduce the number of private sales, as many private sellers now questioning their legal status may stop selling firearms.  And this could increase the number of background checks, as many private sellers now questioning their legal status may apply for a license out of caution, and thereafter be required to conduct background checks on virtually all sales (pursuant to 18 U.S.C. § 922(t)(1)(A)). 

Consequently, it is possible that a broader definition of the term “engaged in the business” may serve as a backdoor method of moving gradually towards universal background checks.  The executive action regarding gun trusts, which are a virtually nonexistent source of crime guns, also appears to further that end.       

Through the Gun Control Act of 1968, and its later amendments in the Firearm Owners’ Protection Act of 1986 (“FOPA”), Congress enacted the following definitions that President Obama now wants to change without the approval or cooperation of Congress. Under 18 U.S.C. § 922(a)(1)(A), it is unlawful for “any person” “to engage in the business of importing, manufacturing, or dealing in firearms,” unless they are “a licensed importer, licensed manufacturer, or licensed dealer.”  A “dealer” is defined by § 921(a)(11)(A) as “any person engaged in the business of selling firearms at wholesale or retail.”      

The term “engaged in the business,” as applied to a dealer in firearms, is defined by § 921(a)(21)(C) as: 
[A] person who 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, but such term shall not include 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.

§ 921(a)(22) explains that:
The term ‘with the principal objective of livelihood and profit’ means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.

President Obama would now like to increase the number of people who fall under the definition of a “dealer” by expanding the definition of the term “engaged in the business” to possibly include a person who sells a single firearm.  Attorney General Loretta Lynch suggested as much, explaining that the number of guns sold to be considered a dealer “can be as few as one or two depending upon the circumstances under which the person sells the gun.”

Significantly, FOPA enacted § 921(a)(21)(C)’s definition of “engaged in the business” and § 921(a)(22)’s definition of “with the principal objective of livelihood and profit” as a response to the ambiguity of The Gun Control Act, which did not provide an explicit definition of “engaged in the business” and invited the type of abuse President Obama now wishes to permit.  In Sen. Strom Thurmond’s (R-SC) Senate Judiciary Report regarding FOPA (Report 98-583 Senate Judiciary Committee, 98th Cong., 2d Sess., at 8 (1984)), he denounced a broad reading of the “engaged in the business” language and explained:
[FOPA] would substantially narrow these broad parameters by requiring that the person undertake such activities as part of a ‘regular course of trade or business with the principal objective of livelihood and profit.’  It expressly provides with respect to dealers that these requirements do not extend to hobbyists who make occasional sales, exchanges, or purchases of firearms for the enhancement of their personal collection, or who sell all or part of a personal collection, nor to those who occasionally do gunsmithing work.  In addition to the obvious benefits that would accrue to licensees as a result of this increased specificity, the [Reagan] Administration has indicated that it would benefit law enforcement as well by establishing clearer standards for investigative officers and assisting in the prosecution of persons truly intending to flout the law.     
Now President Obama apparently intends to recreate the ambiguity that led to uncertainty on behalf of law-abiding citizens, unfair prosecutions, and confusion among law enforcement, perhaps in hopes of scaring law-abiding citizens out of conducting perfectly legal transactions.  
 Article 1, Section 8 of the Constitution grants Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution…all…Powers vested by this Constitution in the Government of the United States.”  Article II, Section 3 of the Constitution requires the president to “take Care that the Laws be faithfully executed.”  It seems plain enough that the president is obliged to take care that U.S.C. §§ 921-922 be faithfully executed.  It seems equally plain that the president has no authority to rewrite a law created by Congress.    

Indeed, he cannot.  Nor can he prosecute a person who violates the law as he rewrites it.  Perhaps that is why the president went about implementing these executive actions the way he did.

First, the ATF Guidance lacks any legal authority.  The Guidance itself explicitly states, “The guidance set forth herein has no regulatory effect and is not intended to create or confer any rights, privileges, or benefits in any matter, case, or proceeding.”  So while it may be intimidating to a person intending to stay within the bounds of the law, it cannot be enforced.

Second, the president opted to take “executive action” rather than issue an “executive order.”  An executive order is legally binding.  An executive action is a vague term that says little more than that the executive branch acted in some way.  An executive action is therefore easier to defend in court, because it generally does not purport to be legally enforceable.  It may be telling that what were commonly referred to as “executive orders” turned into “executive actions” after President Obama met with Attorney General Lynch on Monday.     

A fundamental right cannot be burdened simply because something needs to be done.
Notably, President Obama has not identified a single mass shooting that these executive actions would have prevented.  In his address, which at times could be mistaken for a pep rally, President Obama acknowledged that “common sense reforms like background checks might not have stopped the last massacre, or the one before that, or the one before that,” but opined, “maybe we could try to stop one act of evil, one act of violence.”  A fundamental right—which the right to keep and bear arms was deemed to be by the Supreme Court in McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010)—may not be burdened by a measure even its proponents admit is ineffective at preventing the type of harm it is being enacted to prevent, based only on a hope that it will maybe stop one such act.  A fundamental right cannot be burdened simply because something needs to be done.  Congress’s inaction should be interpreted as an understanding of this, but President Obama interpreted it as an invitation to act alone.

It should also be noted that acts of evil and acts of violence are stopped by law-abiding citizens with guns 
nearly every day.
President Obama, assuming Congress allocates the necessary funds, can constitutionally take steps to improve the efficiency of background checks, more aggressively enforce already existing gun laws, try to improve access for mental health treatment, and encourage the advancement of gun safety technology.  Indeed, many Second Amendment proponents support these measures (although smart guns are controversial and reek of the potential for abuse). 

The mental health executive action may become the most significant of all.  While the Constitution provides room to implement a truly effective measure, there is a cause for concern based on the president’s desire to prohibit 
Social Security beneficiaries who have assigned a financial representative from owning firearms.  The Supreme Court’s landmark decision in D.C. v. Heller, 554 U.S. 570 (2008) deemed firearms prohibitions on the mentally ill “presumptively lawful,” but 18 U.S.C. § 922(g)(4) only prohibits possession by a person “who has been adjudicated as a mental defective or who has been committed to a mental institution.”  27 C.F.R. § 478.11 deems a person “[a]djudicated as a mental defective” if a lawful authority determines that person “lacks the mental capacity to contract or manage his own affairs.”  But without some actual adversary proceeding it is difficult to imagine how many applications of this rule could be constitutional.  (See United States v. Rehlander, 666 F.3d 45 (1st Cir. 2012), in which § 922(g)(4)’s prohibition on the mentally ill was not allowed to be applied to somebody involuntarily committed to a hospital but without any adversary proceeding or judicial finding regarding his mentality or dangerousness.) 

So this may present an uphill battle for the Obama administration in the courts.  And even in the best case scenario, it will deter some people who need help from seeking the help they need.  But for now we need to wait and see exactly what action the president takes.   
Many of the actions listed above should benefit law-abiding gun owners.  More efficient and accurate background checks would be a delight.  More aggressive enforcement of current gun laws that focus on true criminals would keep everyone safer.  More accessible mental health treatment and reporting could save lives, if pursued wisely.  And smart guns may be the choice weapon for some gun owners nervous about the possibility of an accidental discharge (although the free market, rather than the government, should determine their viability).    

The executive action that will seemingly have the greatest effect on law-abiding gun owners, at least until we see what is done with the mental health records, is the attempted redefining of the term “engaged in the business.”  As seems to have been intended, this action will frighten law-abiding gun owners, because as the ATF Guidance explains more than once, “A person who willfully engages in the business of dealing in firearms without the required license is subject to criminal prosecution, and can be sentenced to up to five years in prison, fined up to $250,000, or both.”  Many private sellers will refrain from selling a firearm, while others play it safe and obtain a license (which is no easy task).

The government will have to prove that the defendant knew his actions were unlawful.
The good news is that the executive action is not legally enforceable and should have virtually no effect on current firearms law.  The other good news is that under Bryan v. United States, 524 U.S. 184 (1998), and thanks to FOPA, a conviction for dealing in firearms without a license requires a showing of willful conduct, which means that the government must prove the seller knew his conduct was unlawful:

As a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose.’  In other words, in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’

Accordingly, to prosecute based on conduct covered by this executive action that was not previously covered by the statute, the government will have to prove that the defendant knew his actions were unlawful, when the action was lawful under federal law and only unlawful under an unenforceable ATF Guidance—a daunting task for even the most determined prosecutor.  
Joseph Greenlee is a writer, a general practice attorney in the Colorado Mountains, with a special interest in firearms law and the son of CVR member Gary Greenlee.  He is representing 54 Colorado Sheriffs and 24 retired Sheriffs in a case challenging gun control legislation enacted in Colorado in 2013, which is currently before the 10th Circuit Court of Appeals.