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Experts weigh in on Obama’s gun control executive action

SHERRY KARABIN
Legal News Reporter

Published: February 5, 2016

According to the Federal Bureau of Investigation last year over 23 million firearm background checks were initiated through the National Instant Criminal Background Check System or NICS.

Launched by the FBI on Nov. 30, 1998, the NICS is employed by Federal Firearms Licensees, allowing them to instantly determine whether a prospective buyer is eligible to purchase firearms.

Despite the large number of firearms that went through the NICS, some gun control advocates and industry analysts contend that up to 40 percent more firearms could have been obtained through private transactions that are not subject to background checks.

On Jan. 5, President Barack Obama announced an executive action designed to cut down on the number of sales that escape background checks, clarifying when a seller is deemed “a dealer,” who must be licensed and conduct checks. He also reminded the public that those who go around the rules face criminal penalties.

Prior to President Obama’s announcement, the Bureau of Alcohol, Tobacco, Firearms and Explosives released a 14-page pamphlet (https://www.atf.gov/file/100871/download) designed to provide guidance on criteria that could qualify someone as a dealer, such as having website, using business cards or selling new guns in their original packages.

While the move is getting the thumbs up from gun control advocates, the National Rifle Association and some Republicans are calling Obama’s action another attempt to whittle away the Second Amendment.

Republican U.S. Rep. Jim Renacci, who represents Ohio’s 16th District, issued the following statement, “The American people want the President and Congress to work together on the important issues of today: National security and the economy. Yet time and again, the President has sidestepped the checks and balances of our Constitution in favor of unilateral executive action for his personal agenda - gun control is no different. 

“Our founders explicitly crafted within the Constitution an individual right to keep and bear arms. The President cannot simply ignore provisions of the Constitution, the will of Congress and the American people who elected its members.”

U.S. Democratic Rep. Marcia Fudge (OH-11) called the president’s executive action “the first step toward making our communities safer,” adding “comprehensive national gun policies that eliminate loopholes, expand background checks, ban assault weapons and place limits on high-capacity magazines are long overdue. We must act now to save our families and communities.” 

Last year, Fudge was among those who co-sponsored the Fire Sale Loophole Closing Act to change a federal law that allows gun dealers, whose licenses were revoked or had renewal applications denied, to privately sell their inventory without conducting background checks.

According to Wilson Huhn distinguished professor emeritus at The University of Akron School of Law the president’s executive action does not circumvent existing laws.

“The Constitutional issue here is: Does President Obama have the authority within existing statutes to take these actions? I’ve looked at all aspects of his action and I do not see any constitutional problems.

“The president has the power to execute laws and so long as he is not disobeying or ignoring the rules, then it is perfectly appropriate for him to ask various departments to take a look at certain regulations and determine how to better enforce them,” said Huhn.

“Some of the actions are only suggested guidance for federal agencies.”

According to the ATF, a dealer is defined as someone who is “engaged in the business” of selling firearms.

In the recently released ATF pamphlet, “Do I Need A License To Buy And Sell Firearms?” the agency defines a person engaged in the business of dealing in firearms as one 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.”

“The main issue here is that you are regularly engaged in selling and reselling firearms for profit,” said Huhn.

The ATF pamphlet states that federal law exempts people “who make occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby,” or someone “who sells all or part of his personal collection of firearms.”

The other point the president made, said Huhn, is that it does not matter whether you are conducting your business from a store, gun show or the Internet. “If you are doing so regularly then you must get a license and conduct background checks.”

Under the current rules, he said a person who inherits a weapon and wants to sell it would not need a license, while someone who repetitively sells guns at a show or flea market must obtain a license.

Huhn said the president is also instructing agencies to make sure that background checks are conducted “when purchasers attempt to obtain weapons in the name of corporations or trusts.

“The problem is that we don’t know who is actually going to end up with the weapon,” said Huhn.

Gun show promoter Chris Beebe offers a different view on Obama’s actions.

“In my opinion, President Obama is taking an existing law and stretching it to the breaking point,” said Beebe, who promotes gun shows in north and east Canton. “I think the goal is to try and scare people away from buying and selling guns.”

Beebe said it’s too early to determine what effect the executive action will have on gun shows.

“I personally don’t have a problem,” he said. “There is no license requirement to promote a show and I have had a federal firearms license for years.”

Beebe said gun shows feature more than just firearms. “There are a variety of exhibitors; some have a license and others don’t.

“Since the announcement I’ve had inquiries from people wanting to know if they can still sell the gun they inherited from Uncle Bob,” he said. “The law makes an exception for occasional sales or purchases by collectors and hobbyists, and someone can always sell all or part of a personal collection.”

Beebe said much is made about the destructive aspect of guns in the media, but “there is little recognition about the good that firearms can do in helping a person to defend himself against a crime.

“Many mass shootings are done by people who obtained their guns legally,” he said. “Even the president acknowledges that his actions won’t stop mass shootings.”

Beebe said if the intent of the president’s action is to make people go through background checks then “if you are unlicensed and you bring the buyer to a licensed dealer to run the checks, I would think you would be within the law. But if the intent is to scare people then I would think it would not make a difference.”

He said the big question in his mind is what comes with registration?

“In my opinion, I think confiscation is the end game,” said Beebe. “Each time an action is taken that impacts gun ownership, a piece of the Second Amendment is torn away.”


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