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.