Executive Orders: The Shoe Drops

The White House has released a press statement (which I do not yet have a link to) [UPDATE: The link can be found here.] announcing their plans. I have to say, for the most part, it’s a big nothingburger. The EO plan is far less bold and ambitious than I was expecting, but we are dealing with a semi-retired President here. Here’s some text from the press release:




Clarify that it doesn’t matter where you conduct your business—from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks. Background checks have been shown to keep guns out of the wrong hands, but too many gun sales—particularly online and at gun shows—occur without basic background checks. Today, the Administration took action to ensure that anyone who is “engaged in the business” of selling firearms is licensed and conducts background checks on their customers. Consistent with court rulings on this issue, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has clarified the following principles:

o A person can be engaged in the business of dealing in firearms regardless of the location in which firearm transactions are conducted. For example, a person can be engaged in the business of dealing in firearms even if the person only conducts firearm transactions at gun shows or through the Internet. Those engaged in the business of dealing in firearms who utilize the Internet or other technologies must obtain a license, just as a dealer whose business is run out of a traditional brick-and-mortar store.

o Quantity and frequency of sales are relevant indicators. There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement. But it is important to note that even a few transactions, when combined with other evidence, can be sufficient to establish that a person is “engaged in the business.” For example, 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 also were present.

o There are criminal penalties for failing to comply with these requirements. 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 up to five years in prison and fined up to $250,000. Dealers are also subject to penalties for failing to conduct background checks before completing a sale.

What is this? Just a finger wagging? There don’t seem to be any specific numbers attached to this like we were expecting. It’s a restatement of current law. I’m not sure how this changes anything. Maybe they are planning to prosecute more marginal cases they wouldn’t have taken to court previously?

Require background checks for people trying to buy some of the most dangerous weapons and other items through a trust or corporation.  The National Firearms Act imposes restrictions on sales of some of the most dangerous weapons, such as machine guns and sawed-off shotguns.  But because of outdated regulations, individuals have been able to avoid the background check requirement by applying to acquire these firearms and other items through trusts, corporations, and other legal entities.  In fact, the number of these applications has increased significantly over the years—from fewer than 900 applications in the year 2000 to more than 90,000 applications in 2014.  ATF is finalizing a rule that makes clear that people will no longer be able to avoid background checks by buying NFA guns and other items through a trust or corporation.

This is 41p, but it says ATF is finalizing the rule. They’ve been doing that for months now. Will they finish? What’s the timeline?

Ensure States are providing records to the background check system, and work cooperatively with jurisdictions to improve reporting.  Congress has prohibited specific categories of people from buying guns—from convicted felons to users of illegal drugs to individuals convicted of misdemeanor crimes of domestic violence.  In the wake of the shootings at Virginia Tech in 2007, Congress also created incentives for States to make as many relevant records as possible accessible to NICS.  Over the past three years, States have increased the number of records they make accessible by nearly 70 percent.  To further encourage this reporting, the Attorney General has written a letter to States highlighting the importance of receiving complete criminal history records and criminal dispositions, information on persons disqualified for mental health reasons, and qualifying crimes of domestic violence.  The Administration will begin a new dialogue with States to ensure the background check system is as robust as possible, which is a public safety imperative.

Oooh, a new dialog. That’ll show them!

Make the background check system more efficient and effective. In 2015, NICS received more than 22.2 million background check requests, an average of more than 63,000 per day. By law, a gun dealer can complete a sale to a customer if the background check comes back clean or has taken more than three days to complete. But features of the current system, which was built in the 1990s, are outdated. The Federal Bureau of Investigation (FBI) will take the following steps to ensure NICS operates more efficiently and effectively to keep guns out of the wrong hands:

o FBI will hire more than 230 additional NICS examiners and other staff members to assist with processing mandatory background checks. This new hiring will begin immediately and increase the existing workforce by 50 percent. This will reduce the strain on the NICS system and improve its ability to identify dangerous people who are prohibited from buying a gun before the transfer of a firearm is completed.

o FBI has partnered with the U.S. Digital Service (USDS) to modernize NICS. Although NICS has been routinely upgraded since its launch in 1998, the FBI is committed to making the system more efficient and effective, so that as many background checks as possible are fully processed within the three-day period before a dealer can legally sell a gun even if a background check is not complete. The improvements envisioned by FBI and USDS include processing background checks 24 hours a day, 7 days a week to improve overall response time and improving notification of local authorities when certain prohibited persons unlawfully attempt to purchase a firearm.

Again, nothingburger. Though, there is a lot of potential for abuse here, in terms of retaining records the law says have to be destroyed. We’ve seen them do that before.

The release also notes that the President is asking for a lot more funding to hire more ATF agents, to enhance to National Integrated Ballistics Information Network, and to establish an Internet Investigations Center inside ATF to track “illegal online firearms trafficking.”

Ensure that dealers notify law enforcement about the theft or loss of their guns.  Under current law, federal firearms dealers and other licensees must report when a gun from their inventory has been lost or stolen.  The regulations are ambiguous, however, about who has this responsibility when a gun is lost or stolen in transit.  Many lost and stolen guns end up being used in crimes.  Over the past five years, an average of 1,333 guns recovered in criminal investigations each year were traced back to a licensee that claimed it never received the gun even though it was never reported lost or stolen either.  Today, ATF issued a final rule clarifying that the licensee shipping a gun is responsible for notifying law enforcement upon discovery that it was lost or stolen in transit.

I don’t really have a problem with this, to be honest.

Include information from the Social Security Administration in the background check system about beneficiaries who are prohibited from possessing a firearm.  Current law prohibits individuals from buying a gun if, because of a mental health issue, they are either a danger to themselves or others or are unable to manage their own affairs.  The Social Security Administration (SSA) has indicated that it will begin the rulemaking process to ensure that appropriate information in its records is reported to NICS.  The reporting that SSA, in consultation with the Department of Justice, is expected to require will cover appropriate records of the approximately 75,000 people each year who have a documented mental health issue, receive disability benefits, and are unable to manage those benefits because of their mental impairment, or who have been found by a state or federal court to be legally incompetent.  The rulemaking will also provide a mechanism for people to seek relief from the federal prohibition on possessing a firearm for reasons related to mental health.

We’ve known about this. It’s old news. It doesn’t even say they are finalizing a new rule, just that they will begin the rule making process.

Finally, Obama is directing federal agencies to look more into smart gun technology and increase R&D efforts, and look into smart gun procurement by federal agencies if they would meet “operational needs.”

So he’s basically just restating current efforts, and not really changing anything about “engaged in the business.” This is a lot less ambitious and bold than I was expecting.

22 Responses to “Executive Orders: The Shoe Drops”

  1. John Biros says:

    Who in the SSA determines mental competency? Unless a person is adjudicated mentally defective, they shouldn’t be a prohibited person. A Judge and jury should be the only entity that can make that determination.

    I guess they want to go back to the old ATF rules, that permitted selling out of your kitchen….obtain an FFL, do BGC, no matter how many firearms you sell.

    And this will affect exactly 0 guns used in crime, because we know all those people on SSA are selling dope, and thuggin in da streets.

  2. Patrick says:

    So 1990-era gun controllers promulgated regulations to make it hard to become an FFL by requiring gun trade to be a true income source, so that they could reduce the number of “gun dealers”.

    Fast forward 20 odd years, and gun controllers are now looking to promulgate regs that will turn hobby gun traders into full-scale “dealers” by letting them get an FFL.

    Gawd help them, they are consistent.

    I see a lot of newly minted “kitchen table” FFLs sitting at flea markets across the USA (the regs suggest geography is not an issue anymore), thanks to the greatest gun salesman the USA has ever known.

    AND they are improving the NICS system by adding more personnel and updating the technology. No more waiting for the NICS system to clear you during the holiday rush. Thanks, Obama (really).

    The only suck is the NFA trusts, but we saw those coming two years ago.

  3. Todd G says:

    Wonder if the “conducts firearm transactions … through the Internet” will affect Armslist, Gunbroker, and similar ‘net advertising? Seems that would be easy pickings for a new ‘Internet Investigations Center inside ATF to track “illegal online firearms trafficking'”.

    Todd G
    Not that one, another one.

    • Publius says:

      All those sites do is make it easier for buyers and sellers to find each other. You still have to go through an FFL. I bet even in-state transfers usually do anyway, just to be on the safe side.

      • Todd G says:

        Actually not. “going through an FFL” for transfers doesn’t make the FFL the seller, just a method for background checks. Unless you sell to an FFL, or at least consign through and FFL for sales, I see this vague “know it when I see it” law very concerning.

        No GB, Armslist, GunTrader, etc. without the seller actually being an FFL. Range swap meet? Nope. For Sale/Wanted board? Nope.

        Violations are up to the judgement of the authorities, and the AG is already saying even the sale of one gun can mean the seller must have an FFL, “depending on the circumstances.” Which of course they will determine as they see fit.

        Dark days ahead.

      • TS says:

        “All those sites do is make it easier for buyers and sellers to find each other. ”

        You know that, and I know that, but this is what they are talking about when the get the vapors because somebody was able to “buy a gun online”.

  4. Ian Argent says:

    Maybe he expects The Usual Suspects to reflexively and mindlessly oppose? I don’t see anything worth a single billable hour of an Waples Mill Rd lobbyist, other than the administrative rulemaking that’s stalled, has been stalled, and probably will continue to be stalled.

    • Chase says:

      So far, that’s exactly what the usual suspects are doing. Isn’t it? At least publicly.

  5. Miguel says:

    “Ensure that dealers notify law enforcement about the theft or loss of their guns.”

    That has been in the books for a long time now.

    “Any Federal Firearms Licensee who has knowledge of the theft or loss of any firearms from their inventory must report such theft or loss within 48 hours of discovery to ATF and to the local law enforcement agency. (Regulations at 27 CFR § 478.39afollow and implementing section 923(g)(6)follow require that the report of theft or loss be made by telephone and in writing to ATF).

    Upon discovery of any theft or loss of any of your firearms:

    First, call your local law enforcement agency to report the theft or loss. Contacting .the local law enforcement authorities is essential to the quick recovery of firearms taken in a crime. If the firearms are unaccounted for during inventory, you should make it clear to the authorities that there is no evidence of a crime and that the disposition of these firearms is unknown and may stem from a record keeping error.
    Second, call the ATF’s Stolen Firearms Program Manager toll-free at 1-888-930-9275. They can also assist in the preparation of the Theft / Loss Report for submission. ATF will work with the local law enforcement authorities investigating the theft.
    Third, complete the report form (ATF Form 3310.11follow) and attach any continuation sheets necessary (ATF Form 3310.11Afollow) and mail it to ATF’s National Tracing Center. Be sure to submit the original form(s) to ATF and retain copies for your records.
    Fourth, complete the report form (ATF Form 3310.6follow) (INTERSTATE) for firearms missing in shipment; reports can be taken by either party, the Shipper, Consignee/Receiver or the Carrier”

    • Sebastian says:

      It wasn’t clear whether if a gun was lost in shipment, it was considered in the FFLs inventory. If you find a shipped gun didn’t arrive at its destination, I don’t really have an issue with requiring the sending reporting it if they discover it.

      • Miguel says:

        As Dennis B. of Dragon Leatherworks explained to me, depends if the gun was shipped FOB or COD. If COD, the gun is still considered in the inventory of the shipper. If FOB then the gun is considered to be in the inventory of the buyer.

  6. Chris from AK says:

    It actually is sort of a big deal, in an understated sort of way.

    These Executive Actions basically enact the more onerous parts of Manchin-Toomey in a back-door ambiguous sort of way.

    Take the verbiage about needing an FFL for engaging in the business. I would wager that the implementing regulations will declare advertising on the internet to be an indication that the seller is “engaged in the business” and thus requires an FFL.

    It is no surprise that they want more funding for an “Internet Investigations Center.” They’re going to go after Armslist, discussion boards, and similar entities that allow people to find each other. A few agents sitting in DC or regional offices can pretty actively solicit purchases very rapidly, go and make the purchase, then immediately arrest the seller for “engaging in the business.

    Imagine the press release after an ATF agent buys two glocks from SumDood on Armslist. The government can point to the sales traffic on the websites and say “Joe Schmoe advertised multiple firearms for sale to an audience of over 12 million viewers. In the Government Expert’s opinion, the firearms were sold for significantly above their fair market value, indicating a realization of profit on the transaction. Joe Schmoe is clearly an illicit gun trafficker engaged in the business of buying and selling firearms without an FFL.”

    Will they get convictions? Sure, in the right Districts and Circuits. And they’ll be smart about where they initially prosecute. After the initial wave most cases will be plea bargained out; most middle class folks facing hard felony time with the feds will take the deal. This is about suppressing lawful activity and punishing political enemies, not about reducing crime. It is also super easy to do; a few agents answering Armslist ads from HQ can easily ensnare dozens of sellers in a few days with some clicks and phone calls. Certainly easier than actually going after Ray-Ray and Ice Dog, and even easier than running guns to drug cartels in Mexico.

    The other stuff? Stuff we knew about but is still Bad.
    – 41P removes the ability for a majority of the Nation’s population to buy NFA items due to CLEO signoff. Best case is the backlash gets us the delisting of some NFA items.
    – The enhanced digitization of NICS and more datasharing and such? That’s going to involve shredding HIPPA rules I would wager.
    – Funding for more NICS examiners and “other staff”? I’d wager a beer that there’s some paid staff positions for Everytown USA Staffers Gun Violence Experts snuck into that request. Its also an opportunity for the administration to hire ideologically like minded folks into GS civil service positions where they will linger on in the entrenched bureaucracy for decades.
    – The smart gun stuff? Sounds like a way to divert funds from “untouchable” Sacred Cow fed agency budgets (DoD, Secret Service, FBI, etc) to gun control efforts.

    But of all of it, the internet stuff is the most hazardous. This press release is indicating that using the internet to advertise is an indicator of “being in the business” and ATF will prosecute for as few as two private sales. Now we’ll see if there’s a string of flashy high profile arrests in the next few months.

    • .weston.pecos. says:

      “The enhanced digitization of NICS and more datasharing and such? That’s going to involve shredding HIPPA rules I would wager.”

      I doubt Obama is thinking this way, but the HIPPA law itself probably only has a few more years, if that long, before it is thrown out as a violation of First Amendment freedom of speech. Sharing of medical information is, and always has been, an ethical issue for the medical profession. It is not a Constitutionally permissible area for infringement of freedom of speech under criminal law. That point was made clear by a SCOTUS decision during last term that ruled that government can not bar a whole category of speech. That was, I believe, a case about securities law that prohibited making of material misstatements of fact. That was thrown out, and the way that the decision was written has many experts expecting that a whole bunch of laws will soon be declared unconstitutional, including HIPPA.

    • Carl from Chicago says:

      I don’t really mean to single out Chris, but when I read the above and similar I can envision the snide culture warriors at Everytown and in Obama’s administration are grinning ear to ear as they read the same. Frankly, these comments sound like scaredy-cats. I lived in Chicago long enough to know that if they did nothing else, all the petty rules and ordinances made a lot of otherwise good and reasonable gun owners paranoid. This sort of paranoia plays right in to much of the hoped-for intent of these rules, orders, decrees, and the media who push them. Don’t be afraid, and certainly don’t be paranoid. As a famous songwriter once said, tell the truth, stand your ground, and don’t let the bastards get you down.

      • Chris from AK says:

        The bigger issue is with those that run gun ranges, web sites like Armslist, and gun shows.

        If there are some high profile prosecutions with highly publicized perp walks of private sellers who are buying/selling guns (and maybe some sort of additional conspiracy charges against the venue), I see a lot of boards of directors and corporate officers deciding that they don’t want the exposure or liability and demanding to see an FFL from private sellers at those venues.

        I think we really need to see the final text of the rule as well as get a few months of observation of ATF agent & fed prosecutor behavior to know if this is just a bunch of hot air or if they are going to stick it to gun owners in the last few months of this administration (and start of the Clinton administration, if it comes to that).

  7. John says:

    So if I regularly sell one or two guns on Gunbroker every year, I now have to risk prosecution for not having an FFL? Wont this stop millions of firearms transactions a year on gunbroker, armslist, etc. This is crazy. Am I missing something here…

    • Sebastian says:

      If you’re shipping them through an FFL, I don’t think you have anything to worry about.

      • Todd G says:

        The FFL is not the seller in these transactions. Only a method of shipping across state lines.

        I think Chris is closer to the way this will play out, particularly if Her Majesty is elected later this year.

        Just because you are paranoid doesn’t mean they aren’t out to get you.

        • Ian Argent says:

          Doesn’t the FFL still have to book the transaction anyway? Have the FFL “Sell it on consignment.” The original seller transfers it to the FFL, the FFL transfers it to the original buyer.

  8. .weston.pecos. says:

    The anti’s are very clever. Get the easily-digested poison into the gunners’ mouths first. Make the gunners think this is all a lot of fluff hot air talk; a lot of nothingburgers.

    They said they will be rolling out the EO’s over the next few days. What is described in the press release is the first batch, with more to come. That first batch is the stuff that amounts to very little and is “very much legal,” without much if any room for us to object.

    [An aside: they are not interested in curbing handguns. To ramp up the rules and/or enforcement regarding handguns would mostly wind up ensnaring more Black urban males and Obama does not want that to happen.]

    His real target is the AR-Generation. He wants to squash that part of the culture. He can do that by targeting the weapons directly and by going after ammo sales. Watch out for it. Bulk online ammo sales are going to get ripped to shreds by Obama some time this week. I also think he will make a direct move against AR’s. Notice how the anti’s don’t call them Assault Weapons (or, Assault Rifles) anymore? Now, they are called “battlefield weapons of war.” There’s a reason for that change. I think he can still hurt us a lot with legally unassailable EO’s that are based in established law, just not the firearms laws we are thinking about. And, as long as he does not do anything that requires confiscation or turning-in of currently owned stuff and just focuses on prohibiting future transactions, he disables a huge potential for potential litigants to easily establish “standing”. Look for example at that recently-introduced bill in the U.S. House that bans AR’s. It grandfathers in anything and everything already owned. It does not necessarily ban future AR’s for non-LEO’s; it bans TRANSACTIONS (purchases, transfers). The 2nd Amendment protects right to keep and bear arms, but nothing in the Constitution protects our “right” to financial transactions in the future. Interestingly, many state Constitutions (such as PA’s) do protect the integrity of contracts and other transactions, but the Federal one does not. And, there is no reason that Obama could not issue an EO on Wednesday or Thursday that implements in whole or in substantial part, that AR ban using existing law that empowers the President to regulate transactions. Don’t forget that FDR ordered the banks to close in 1933 using the Trading With the Enemy Act from 1917. He then subsequently banned private ownership of gold in April 1933 based in part on the 1917 TWEA and in part on the March 1933 amendments to TWEA. There are some other laws on the books that empower the President to declare an emergency based on an attack from foreign sources (sounds like…ISIS…San Bernadino) and then regulate transactions to reduce the threat. Obama has already used that law (not TWEA — he used a more modern law from 1977) to issue EO’s # 13536, 13566, 13581, 13611, 13660, 13667, 13664, 13692, 13694, and 13712. So, he knows that he has powerful, unassailable, options to really smack us hard. I hope he does not do so.

  9. DamDoc says:

    Man, you could see this schist coming…mmBought 300 shares of RGR last week and sold today and bagged About $1700 in my sepira… Also picked up my GP100 Match Champion today at my lgs at my LGS for $730, via Davidsons… Not only is “the one” the best gun salesman ever, I got him to pay for my gun, plus lots of ammo… what an intransigent pig head this guy is.

  10. Chase says:

    So the President says “common sense gun restrictions,” just like always…but this time, three-fourths of what he proposes, at least on paper, turns out to actually be common sense.

    Actually, I’m not even mad. That’s amazing! :D