What Can Obama Do on His Own to Tighten Gun Control?

The president appears poised to bypass Congress, and impose stricter regulations on the purchase and sale of firearms.

Kevin Lamarque / Reuters

Five days after a gunman murdered nine people attending evening prayer services at a South Carolina church last summer, President Barack Obama reflected on his country’s intensifying record of mass shootings.

“It’s not enough just to feel bad,” Obama told the comedian Marc Maron in an appearance on Maron’s podcast. “There are actions that could be taken to make events like this less likely … And I don’t foresee any real action being taken until the American public feels a sufficient sense of urgency and they say to themselves, ‘This is not normal; this is something that we can change, and we’re going to change it.’”

Speaking from the Oval Office on Sunday night, Obama said that “Congress should act to make sure no one on a no-fly list is able to buy a gun.” He added that Americans “also need to make it harder for people to buy powerful assault weapons, like the ones that were used in San Bernardino,” but he offered no specific proposals to do so.

Yet there is still more the president can do on his own, without congressional action. Many advocates for stricter firearms laws believe Obama is again poised to use executive power to address gun violence. The step he’s likely to take, they say, is to broaden the definition of what it means to be in the business of selling firearms—a move that would mean more oversight for gun dealers, and would end up requiring more buyers to be subject to background checks.

Federal regulations already require professional gun dealers to be licensed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. But the law doesn’t clearly define what it means to be in the business of selling guns. Some sellers use the ambiguity of the current law to advertise the fact that they don’t require background checks, which makes it easy for people to purchase weapons without any scrutiny. Officials have identified, and in some cases convicted, individuals selling tens of thousands of dollars worth of guns per year without a license because they don’t consider themselves to be in the gun-selling business. In many cases, those guns end up linked to criminal activity, according to a report by the Center for American Progress:

In July 2015, an individual in Orlando, Florida, was convicted of selling guns without a license after he sold 113 guns over a 14-month period for around $63,000, including at least one sale to a prohibited purchaser. In June 2015, an individual in Camden, New Jersey, was convicted of selling guns without a license after he admitted to selling at least 200 handguns over a nine-month period, many of which were sold to an admitted drug dealer who then resold many of those guns to other drug dealers. In May 2013, a woman in Manassas, Virginia, was convicted for violating this law after she purchased 31 handguns at guns shows across three consecutive weekends with the intent of reselling them. A number of these guns were later used in drug-trafficking crimes in Maryland.

Obama could use executive power to clarify the existing law—perhaps by adding a set number of guns sold, or the amount of money that a person can pull in from gun sales—and determine what constitutes being in the firearms business. Doing so would require more sellers to be licensed.

“Becoming a licensed dealer has two immediate consequences,” said Chelsea Parsons, the vice president of guns and crime policy at the Center for American Progress. “The seller becomes subject to oversight and regulation by ATF, and they are required to conduct background checks for all gun sales.”

Those who oppose a new definition of what it means to be in the business of selling guns say that the existing regulation is working—officials are catching and convicting some unlicensed sellers, after all—and that stricter rules will unfairly trip up individuals who really aren’t professionals. The NRA, for instance, likes to give the example of a widow who is trying to sell her late husband’s guns after his death.

“The NRA often talks about the person who is inheriting guns, needing to sell them, and that this would make it very hard for that person to dispose of their guns,” said Lanae Erickson Hatalsky, the vice president for social policy and politics at the think tank Third Way. “But it’s very easy to make sure the person you’re selling a gun to is not a criminal—by going to a gun store and requesting a background check. If I were a responsible firearms owner, I would already be doing that voluntarily.”

Advocates for stricter gun laws have long been pushing for more explicit rules on what it means to be a gun dealer. The president considered using executive power in this way after the shooting massacre that killed 20 children and six women in Newtown, Connecticut, in 2012, but ultimately opted against it. At the time, he announced 23 other executive initiatives related to gun violence, and urged Congress to pass legislation to reduce gun violence.

“Back in 2013, there was a real sense that all of us might come together and actually agree on some common-sense gun legislation. I think that that hope—at least in the Obama administration—has passed at this point,” Erickson Hatalsky said. “They may be willing to go further than they were in the past because they are no longer trying to court anyone in Congress.”

While Obama appears willing to do more than he has in recent years, the president is still unlikely to make sweeping changes to the nation’s gun laws. There are a few reasons for this. For one thing, Obama has already stretched the limits of what he can do with his presidential authority when it comes to tightening gun laws. That happened after the Connecticut elementary school massacre in 2012.

The limitations of executive power are such that the president can only alter existing laws or make administrative changes to existing programs; he can't create new laws from scratch by himself. A more modest approach is also more likely to stick, at least for a while. “It can get tied up in the courts pretty easily, and the courts seem open to dealing with questions of executive power,” said Julian Zelizer, a professor of history and public affairs at Princeton University. “Conservatives are ready to challenge anything he does on this, and he’s aware of that.”

Timing is another challenging factor. Obama’s presidency is nearly over. “The next president can get rid of whatever he does,” Zelizer said. “The durability of executive action is much thinner than legislation, and much more fragile.”

Republican candidates have already told voters they plan to undo Obama’s work using their own executive action, if elected. “We’re going to be unsigning a lot of executive orders,” Donald Trump recently promised on the campaign trail, according to The Daily Caller.

Although the majority of Americans believe gun sales should be stricter, according to an October Gallup poll, many Republicans believe Obama will go too far if he uses executive power at all. But the idea that Obama would do anything dramatic, like an attempt to ban firearms or significantly restrict access to them—an approach taken in several other countries following mass shootings—is unrealistic.

“Unless somehow he invokes wartime power, but that’s not going to happen,” Zelizer said. “No, he has to deal with laws pertaining to background checks and licenses and try to take action through that. Without question, his preference is legislation, but I think he just doesn't see that happening. Even if public opinion is strongly on the side on regulation, the process is broken.”

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