Will Obama's Executive Order Cap Private Gun Sales at 50 Per Year?

Many news stories are reporting that President Obama is set to announce an executive order on the topic of gun control. This executive order is intended to limit private sales and increase the numbers of gun sales or transfers that require a background check. Incidentally (perhaps intentionally too), it will also gut gun shows of private sellers, some of whom admittedly probably should be licensed, based on volume. Unfortunately, this executive order will have a chilling effect on the right to keep and bear arms, increase the power of an ineffectual agency, the ATF, and is a redundant measure to existing laws which go largely unenforced.

As a hostile Congress has repeatedly stymied Obama’s requests to close this or that loophole and pass “meaningful” gun control, an executive order is his last resort. Obama has stated several times in the past few months that gun control is the final major objective he would like to achieve before leaving office. Out of all the options available to him, he has arrived at empowering the ATF, by using its regulatory discretion (authorized by Congress long ago), to precisely define what being “engaged in the business” of buying and selling firearms is exactly.

President Obama’s executive order is intended to cut down on the numbers of private gun sales that cannot be tracked through background checks. The ultimate plan, as I have unveiled in my exposé of the UBC initiative, is to force all sales through dealers, under the guise of increasing background checks to ease the implementation of a sale/transfer based gun registration system.

If President Obama’s executive order passes, and universal background checks for that matter, gun buyers will be required to pay at least $25 in Nevada, perhaps more, depending on the dealer, to buy or transfer a gun. In states like California where private sales are illegal, the fees generally run from $75 to $100 or more dollars.

“Engaging in the business”

Many are wondering exactly what can the president do? Federal officials admit that “engaging in the business” is a hard phrase to define, in terms of numbers and conduct. Suggestions have been made for over two decades to more strictly define the term to narrow who may sell without a license. First, we need to understand the phrase "engaged in the business".

The 1968 Gun Control Act defines: "engaged in the business" as: 

“as applied to a dealer in firearms, … 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...” 

and  “with the principal objective of livelihood and profit” as: 

“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; Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism...” 

President Obama’s power in this particular case is limited strictly to his control as chief executive over the Bureau of Alcohol, Tobacco, and Firearm. As they have done before regarding various types of ammunition and devices like the Sig Brace, the ATF can make some regulatory decisions. Congress has specified that the ATF may create regulations to further the enforcement of legislation. In this case, the president will direct the ATF to create a numerical definition of “engaged in the business” of buying and selling firearms.

This is entirely in keeping with the power of the ATF and the president, even though it contradicts a strict view of the Second Amendment and confuses the issue of separation of powers. President Obama cannot ban gun shows, he cannot ban private gun sales, and he cannot mandate universal background checks, at least not without becoming a dictator.

He can however decimate gun shows by threatening private sellers with their large numbers of guns for sale with prosecution if they sell X number of too many guns. At the extreme end of the debate on what the president will do, some have said that “multiple” sales, meaning more than one gun in a given period, would equate being “engaged in the business.”

How many make it business?

The question is not is President Obama going to place a number on what constitutes “engaging in the business”, but rather, what that number is going to be.

Several cases found the following variation in numbers that under the totality of the circumstances equaled “engaging in the business.” For example: 30 firearms bought and sold over a 4-month period, three transactions involving eight firearms over 3 months, more than 12 firearms transactions over “a few months”, codefendants sold 11 firearms at a single gun show; 11 firearms sold over 6 weeks, six firearms sold over 2 weeks.

There is no easy metric, as an avid shooter could purchase a number of firearms in a year, determine they do not like the gun they bought, and turn around and sell it. Some may be forced to liquidate very large firearm collections due to financial needs or upon the death of a relative. In the first case, a wealthy, avid shooter could (for example) conceivably try out one new gun a month and sell it. For a professional firearms reviewer who prefers to remain independent and not accept trial weapons, this is entirely realistic. A large gun collection ranging from dozens to hundreds could likewise be liquidated for various reasons. Neither would be “engaging in the business”, though through factors like market demand or appreciation, a profit could be made.

How many at a time, or in a year, and with what intent? For instance, 10 guns, four times a year, sold by advertisement or at a gun show? Someone could still sell 40 guns that way. Online sources have variously speculated that the number is anywhere between five and twenty-five a year, or even “one gun per month.” The most accurate estimate that anyone has gleaned from the Obama Administration has come from the Washington Post with 50 guns annually and even the Justice Department conceded the difficulty in setting such a number.

“White House officials drafted the proposal in late 2013 to apply to those dealers who sell at least 50 guns annually, after Congress had rejected legislation that would have expanded background checks more broadly to private sellers. While the White House Office of Legal Counsel and then-Attorney General Eric H. Holder Jr. initially concluded the regulation was legally defensible, according to several individuals involved in the discussions, some federal lawyers remained concerned that setting an arbitrary numerical threshold could leave the rule vulnerable to a challenge.”

Nevada Carry believes 50 is the number the president will specify, saying it allows for liquidation of collections and pursuit of hobbies, etc. Gun grabbers always want to appear reasonable in their ‘common sense’ demands because they never see themselves as they potential tyrants that they are.

To be in violation of the law and truly “engaging in the business”, one must be “obtaining livelihood and pecuniary gain” from the sale of firearms; that is deriving income to live by or getting some monetary gain, i.e. profit. Simply making a profit, as I go into further detail below, is far too narrow of definition, in fact, it would be unconstitutionally vague by itself.

Imagine a license being required to sell a gun privately because it is worth more than when you bought it and such increase in value is a ‘profit.’ The Glock 42 and 43 series of single stack pistols are very popular and were in quite high demand upon their introduction. Many shooters bought them because of their novelty, only to find that they disliked the Glock trigger or another factor and then offered them for sale online. If a private buyer is willing to pay more than the seller paid, because of scarcity, should she seller be required to be licensed?

Everytown has an article on its widely criticized research website with sensational stories of guns sold privately that resulted in tragic death. The examples they cited ranged from 16 to 700 guns sold. While the latter case, based on sheer volume over time alone, can be undeniably cited as someone “in the business”, numbers as low as 16 approaches the level of arbitrary.

A numbers-sold only approach is ineffective. Let’s say the rule is 50 guns sold in a year is “engaged in the business.” So I have to get a license to sell the 51 guns in my deceased father’s collection?

No one really knows what the number will be. Perhaps the president will use an average of statistics gathered from prosecutions and ATF investigations to make an educated guess at what the number should be. The following weeks can only tell.

Gun shows really a problem?

Those who have been to gun shows know that private sellers range from people looking to sell one or two of their guns to vendors with tables full of guns, sometimes the indistinguishable from licensed dealers. Without a doubt, some people take advantage of being a private seller to unlawfully “engage in the business” because it is easier than being a federally licensed dealer and are seeking to make a business income without the overhead and responsibility of a legitimate business.

Prohibited persons and unscrupulous private sellers do take advantage of private sales to avoid background checks. This is the main reason why the president and the Justice Department are so opposed to private gun sales, at least publicly. From a licensed dealer’s perspective, it can be frustrating to have to run a business legally and responsibly while watching an unlicensed dealer skirt the law, sell to criminals (intentionally or not), and avoid taxes and business expenses. Most Americans can agree that we should all play fair.

When it comes to providing crime guns, most felons and prohibited persons don’t get their guns from gun shows or the private dealers there. The National Sport Shooters Foundation, which represent dealers, said the following about an anti-gun group’s report on gun shows: 

“Interestingly, the report does unwittingly prove that gun shows and online sales are not the problematic Wild West that gun control groups claim they are. Defendants only used them in a small minority, 10 percent, of the cases examined. The other 90 percent of the time the individuals accused of buying or selling firearms illegally were not relying on gun shows, online markets or print ads.” 

Another report found that “Gun shows are frequently implicated in trafficking investigations yet less than 2% of felons incarcerated for crimes involving guns had acquired those guns themselves at gun shows.”

Clearly, gun shows aren’t the problem. As far as regulating who should have a license and who shouldn’t, based on frequent gun sales in volume, the ATF (responsible for such matters), has failed at this task for decades. This is another regulation that is not going to be enforceable. Existing regulations can be enforced, except that evidences shows the ATF does not do its job.

In July of 2004, the US Justice Department's Inspector General said: 

“We found that the ATF’s inspection program is not fully effective for ensuring that FFLs comply with federal firearms laws because inspections are infrequent and of inconsistent quality, and follow-up inspections and adverse actions have been sporadic. [...]  the ATF manipulates the criteria it uses to target FFLs for inspections so that it only identifies as many such FFLs as it has the resources to inspect.” 

They also found that suspected criminal violations are not always referred for criminal investigation. 

“In our interviews, 12 of 18 Inspectors said that they rarely refer information gathered during FFL inspections to Special Agents because they did not believe that Special Agents would follow-up on the information.” 

The ATF could easily curb the amount of unlicensed dealers abusing the system, yet they do not. Time and time again the federal government fails to regulate or investigate and legislation, in this case by presidential decree, is offered as ‘a solution.’ All the executive order will do to the benefit of ATF enforcement is require the special agent to be able to count in order to determine if there is a violation or not.

Constitutionality

America has entered a strange period where the Supreme Court makes decisions based upon partisan affiliation and the popular mood of the country. One only needs to look at the decisions on Obamacare and gay marriage issued in 2015 for examples. On the gun front, DC vs. Heller goes unenforced outside of Washington D.C. and the Supreme Court, likely out of fear of the liberal justices attempting to overturn the Second Amendment, has not taken additional cases to settle matters definitively. To do so would take the Supreme Court to decide, once and for all, that “shall not be infringed” means exactly that.

Even while an unquestionable right remains assailed in piecemeal around the country, the president has resolved to act any way he can. Reduced to executive order, he will do that. While he could issue an extraordinary decree, such as banning ‘high capacity’ magazines, such an action is not within his discretion as it is a legislative issue and Congress has not granted him any authority, express or implied, to decree on that topic. As I said above, he could direct the ATF to define “engaged in the business” ruining anyone who wishes to sell large numbers of guns privately.

I believe that (at least in a sane judiciary), any attempt to place a number on “engaged in the business” would be unconstitutionally arbitrary without Congress defining the term. For instance, one liquidating a collection because of age, etc. might cross the magic number, but wouldn’t necessarily doing so to earn a livelihood or any extraordinary “pecuniary gain”. A prosecutor would still have to argue in front of a jury just what about a man selling off all but a handful of his guns in order to pay his daughter’s medical bills made him “engaged in the business.” Surpassing an arbitrary number or arguing that one made a profit equals guilt cannot overcome the legislative intent that it was meant to regulate business enterprises.

An executive order, rather than court cases, might itself be subject of successful court challenge. The National Review wrote: 

“the Court held that President Truman had exceeded his authority by directing the seizure of steel mills to avert a strike during the Korean War, stating that ‘the president’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker.’ Thus, the majority found that Truman had strayed too far into the province of the legislature, violating the separation-of-powers doctrine." 

Executive orders are based on the clause from the Constitution that the president “take Care that the Laws be faithfully executed.” He cannot institute new laws. Well, he can try, but without a Congress willing to play along (Obamacare), his attempts will be unconstitutional.

The ATF may tackle people who should be FFLs, have a business license, and pay taxes like the rest of us, but their regulatory and enforcement power should not be used to put gun shows and private sellers out of business. It would be like the FDA shutting down a regular fundraising bake sale because none of the food was prepared in a commercial kitchen. In any case, President Obama can do what he likes, but ultimately, the Second Amendment exists for the main purpose of overthrowing men like Obama and Hillary who would seek to confiscate civilian firearms.