The President released a new executive order on guns this week, but instead of signaling new initiative on the issue, it may show he is reaching the limits of his power.
On Tuesday, the White House announced the President would direct the Attorney General and various federal agencies to implement a variety of reforms. The action included an effort to expand requirements for who must obtain a federal license to sell guns, a request for the Federal Trade Commission to investigate gun advertising, efforts to spread awareness of “red flag” laws, and more. It came in response to a January mass shooting in Monterey Park, California.
President Biden had a simple message in his speech to victims’ families that same day.
“Enough. Do something,” he said. “We remember and mourn today, but I am here with you today to act.”
But the order he produced appears to be far less aggressive than he is projecting and certainly less impactful than his previous gun actions. It also comes as those other orders are staring down oblivion in the courts. And his legislative agenda has already reached the end of the road.
Campaigns to increase awareness of existing laws, like the red-flag initiative, and voluntary requests for reports, like the one on gun marketing, simply don’t compare to attempts to redefine what a firearm is and reclassify pistol-braced guns already owned by millions of Americans as highly-regulated short-barrel rifles. Even the most aggressive aspects of the new order don’t reach the level of President Biden’s previous orders.
Take the vague effort to force more Americans to obtain Federal Firearms Licenses (FFL) for instance. This proposal received top billing from President Biden when announcing the order. He claimed, since FFLs are required to do background checks before all consumer sales, it would get close to making all gun sales subject to FBI checks.
“[M]y executive order directs my Attorney General to take every lawful action possible — possible to move us as close as we can to universal background checks without new legislation,” he said.
But this isn’t the first time a president has pushed for this exact policy. The last administration Joe Biden was part of tried the exact same thing. In 2016, President Barack Obama issued an executive order attempting the exact same thing to little practical effect.
President Biden has a bit more leeway thanks to last year’s Bipartisan Safer Communities Act, which slightly changed the standard for who is “engaged in the business” of dealing guns to those seeking predominantly to profit from their sales. That may embolden the Department of Justice to more aggressively prosecute people who sell guns near the edges of when it could reasonably be considered a business. But federal prosecutors haven’t been very eager to take edge cases to this point, and it’s unlikely they’d be enthusiastic about enormously expanding enforcement.
The same problems affect the President’s push to have the Department of Defense backdoor gun-control requirements into their weapon acquisition programs and get the Federal Trade Commission to investigate gun company marketing.
But even if he succeeds in getting these agencies to take the most aggressive path possible, such as trying to require anyone who makes any profit off a gun sale to obtain an FFL, that will only open up a new set of problems in court. President Biden’s effort to ban the sale of unfinished firearm parts and “ghost gun” kits has already been partially blocked by a Fifth Circuit judge. The judge’s ruling mirrored much of the reasoning used by the full circuit in its decision to strike down the bump stock ban. That puts President Biden’s pistol-brace ban on very unsure footing, given the three rules share the same fundamental legal justifications and weaknesses.
Any effort to overstep the power Congress has granted the administration to regulate gun sales is increasingly unlikely to survive a court challenge. So, President Biden’s new order appears less ambitious on its face, but even if it produces expansive rules, there’s little reason to think those will stick.
That’s probably one reason the President has continued to push for Congress to pass new gun restrictions.
“But let’s be clear: None of this absolves Congress the responsibility — from the responsibility of acting to pass universal background checks, eliminate gun manufacturers’ immunity from liability,” he said in his speech. “And I am determined once again to ban assault weapons and high-capacity magazines. So let’s finish the job. Ban assault weapons. Ban them again. Do it now. Enough. Do something. Do something big.”
Of course, there’s no chance Congress will heed his call. The President couldn’t get any of these policies when his party controlled both houses of Congress. With Republicans now in control of the House, there’s even less reason to think any new gun restriction will make it to his desk.
The President appears to be boxed in on guns now. His rhetoric remains confident, but his actions indicate he understands the restraints he now faces. He has already taken the most aggressive avenues he plausibly could, and those efforts aren’t going to plan. His latest action is more modest, and even if it swerves in the most aggressive direction, its prospects aren’t any brighter than the President’s previous actions.
5 Responses
Sorry, I believe Biden’s executive actions and orders amount to much more than the implications cited here. Anyone who advertises a firearm for sale, or sells at a gun show will be determined to be in it for profit. (After all, everyone wants to get as much as possible for their sales!) That leaves only known associates such as family, friends, and acquaintances, for private transfers.
Also, our ever-so-woke DoD will leap at sacrificing readiness for a policy with a social agenda. Hence, Colt will be presented with the option to sell to the army or sell to the public.
Finally, Republicans will make noise but do nothing to change the law, or even invalidate the orders, thus allowing the orders to stand.
And the courts won’t take this up for years, and by then, they will be packed with hoplophobes and socialist activists who want the people disarmed, for the good of the collective.
That’s certainly the worst case scenario. And the Biden Administration may be inclined to push the limits here. But trying to force everyone to get an FFL to sell any used guns is very unlikely to stand for long in court, especially in the Fifth Circuit. That circuit has already struck down the bumpstock ban and mostly blocked the ghost gun rule. The pistol-brace ban is likely next.
It’s hard to imagine, though you’re right it’s not impossible, that any way Biden tries to push beyond the limits of the American Procedures Act doesn’t meet the same fate and fairly quickly.
And, even if DOD is on board with some scheme to use appropriations to force voluntary gun restrictions on companies they work with, it’s unlikely any major gun company would actually go along with that. After what happened to Smith & Wesson during the Clinton deal, companies are very aware of the kind of backlash they’d face. It would also, of course, be a huge political problem for DOD.
It’s always possible that things don’t go as they have in the past. I don’t want to say there is no way things turn out to go down a more aggressive path than I’d expect and stick. I just think it’s more likely this order doesn’t amount to as much as the previous two. And the previous two are already in serious legal trouble as it is.
A few well-publicized indictments of otherwise perfectly innocent unlicensed individual gun sellers will achieve precisely the chilling effect that Biden and his DOJ desire. No formal administrative rulemaking is required.
A federal felony criminal indictment is a life-altering event for the average person. Few can afford to take a chance on a jury trial—or pay the costs of private representation. So Biden is almost guaranteed to get plea bargains that will, at the very least, create new prohibited persons.
After reading newspaper reports about how these victims’ lives have been destroyed, who will risk selling a gun without going through an FFL?
Combine this with the ever-increasing difficulty of obtaining and maintaining an 01 FFL and one begins to see the game that has already been played-out in places like California: no guns except through FFLs, then no FFLs, so no more guns.
I do think an approach of trying to imply to people they could be prosecuted for selling any guns without a permit is what they’re likely going for with this. However, I doubt it results in successful prosecutions. There’s no way to know for sure. But Obama did try basically this exact same tactic, and it went nowhere. In my estimation, that’s the most likely outcome here too.