President Obama (courtesy

Late last night, President Obama unveiled his new executive orders on gun control. Robert excerpted the new proposals. He asked me to comb through and see what exactly will be changing or impacting gun owners based on these new changes. From what I can tell there are two major impacts on the average American gun owner, but even then those changes will impact a remarkably small minority of gun owners . . .

The headline across the mainstream media last night: President Obama was “closing the gun show loophole.” It’s a sexy headline, but it’s completely inaccurate. As we expected President Obama is attempting to exploit some vague language in the Gun Control Act of 1968 that prohibits people from being “in the business” of selling guns without a license.

We’d been expecting that Obama would set a hard and fast limit on the number of guns that would constitute someone being “in the business.” It didn’t happen. He simply took a highlighter to the original language of the law and shoved it in the face of the ATF, expecting them to go out and actively search for such people. Here’s the text from the press release:

Quantity and frequency of sales are relevant indicators. There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement. But it is important to note that even a few transactions, when combined with other evidence, can be sufficient to establish that a person is “engaged in the business.” For example, courts have upheld convictions for dealing without a license when as few as two firearms were sold or when only one or two transactions took place, when other factors also were present.

In other words, people making a profit off gun sales without a license are bad, and the ATF should go after them. But the President provided no hard and fast direction for the ATF’s “new” enforcement efforts. This can go one of two ways.

Either the Executive Action is simply Obama paying lip service to “closing the gun show loophole” by appearing tough on private gun sales while actually doing nothing, or this is Obama being purposefully vague to allow his ATF to go after as many people as possible.

Some in the mainstream media are salivating over the idea that merely selling a gun in its original packaging might be enough to trigger this new guideline and classify someone as being “in the business” of selling guns. But there’s nothing in the summary to support that idea.

I believe President Obama has wimped out even further than I anticipated. He isn’t actually doing anything about “the gun show loophole” – beyond asking the ATF to do their job.

We’ve already seen the impact of the second major change: the finalized version of the ATF’s proposed rule on NFA trusts. This is another place where the Obama administration can claim that they have expanded background checks. The fact that no crimes have been committed with legally owned NFA items in at least the last decade is irrelevant to the discussion of whether we need to “crack down” on these items apparently.

One positive change that came out of this: the removal of the CLEO sign-off requirement. People living in Democrat controlled areas whose elected chief of police has been refusing to sign off on NFA paperwork can now legally purchase and register whatever they want. All that is required now is notification — not approval.

The remainder of the executive orders are either recommendations to the various local authorities (e.g., a request to submit more records to the NICS system) or plans to increase funding in the next budget to create more ATF agents and NICS investigators. The President can request funding all he wants but it’s up to Congress and the relevant local authorities to make that happen. Or not.

Bottom line: there’s no meat in the President’s latest Executive Orders. I was expecting a relatively wimpy effort this time around; I’m surprised at just how little the President is stretching his authority and exercising his executive muscle. There’s definitely much more that he could have done, but he decided to play it safe and annoy as few gun owners as possible so as not to influence the upcoming election.

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62 Responses to President Obama’s Executive Orders: What They Mean and Their Impact On You (Especially NFA Item Owners)

  1. There was a guy who called Obama a name on national TV. Got suspended or something.

    What was the name again?

  2. Does this mean that you have to submit copies of your form 4’s and form 1’s to the CLEO everytime you move to a new address or is it just during the purchase process?

    • It sounds like just when you put in the application/purchasing process. Also, the photograph and fingerprint part sounds like just whomever is a trustee, within the last two years of an application, and only if nothing (besides Schedule A) has changed on the Trust. The requirement to notify still stands. Again, just what I have gathered. Not a doctor.

  3. Call your representatives. Tell them, we don’t need any representatives in D.C. if the president is going to do it all on his own. If he does it all on his own, he’s a dictator, and history has shown those things tend to have violent corrections on their supporters.

  4. I’ve read a lot of Chicken Little Sky is Falling comments regarding Obama’s new Executive Orders.

    Though I don’t agree with any more restrictions to our already compromised 2nd Amendment, his orders are really much ado about nothing. When I first read them I just thought, “really, that’s it. This is what all the hubub is about?”

    This is weak sauce and really only window dressing to appease the rabid antis. But I would like to see the ATF forced into carrying smart guns per the Obama initiative.

    • It’s already in headlines at Newsweek, AP, etc online; they are all cheering about Obama “expanding background checks” to include “anyone who is in the business of selling firearms, wherever they are”–as if that weren’t already the law. And lots of ignorant commenters swallowing it and wondering if they are going to have to get a dealer’s license to sell that old relic in their attic. I suppose we should be glad if it shuts some of the rank-and-file gun-grabbers up until they figure out nothing has changed. But it’s still kind of frustrating to see so much ignorance out there.

  5. The NFA ruling did us a favor. It eliminates 80% of the reason to have a trust and doesn’t mean much as NFA items already require NICS checks to pick up.

    • Yeah, I am actually going to call that one a net win. Now the only reason to get a trust is for people who want to share their stuff among family members and streamline inheritance etc. All good reasons, but I am willing to accept the marginal increase in paperwork headache to throw a bone to our brothers behind enemy lines (heck there are plenty right here in Texas). My only lingering concern is that this could potentially derail the Hearing Protection Act since the major reason for that bill was to get around those political activist CLEOs. Although it could go the other way now, since it has basically been turned into a $200 background check so why not just add silencers and SBRs to a form 4473 and be done with it. I’m waiting for the other foot to fall because all of this just doesn’t sound like that big of a deal.

      • For me, sharing NFA items among family members is 100% of the reason to have a trust. And I’d love to see the Hearing Protection Act pass so I don’t even need to bother with a trust for cans. To me, the major reason for that Act is simply to stop regulating safety equipment as some kind of extraordinarily dangerous weapon.

        In any case, I agree that this is a net win for those with CLEOs who won’t sign off. I’ll suffer a little extra procedure for the sake of an overall net increase of access to NFA items.

    • How the hell is having everyone on the trust required to get fingerprinted and photographed doing us a favor? They just made it 10x harder and more time consuming for everyone.

      Nobody with a brain registers as an individual anymore, so the comparison to individual registration isn’t especially relevant.

      • I register as “an individual” because I don’t feel like giving extra money to a lawyer when I don’t need to. Eliminating the CLEO signoff has far more impact than requiring a few extra fingerprint cards and pictures.

      • Exactly. This is a move to dissolve trusts and remove part of the veil that protects NFA owners. Its registration at a local level.

        As for the rest of the EO’s its not what they say, its how they they fit into a larger construct which is yet to be revealed. Essentially they are being viewed in a strict context when they are really part of a larger picture.

        Anyway you slice it, its infringement and anybody who says “It’s not that bad” is full of shit.

        • It’s not that it’s not bad, it’s that the good (eliminating signoffs and therefore making it easier for more people to get NFA items) outweighs the bad. You have to take the full ruling in context. NFA trusts were a gimmick created because of a bad regulatory environment. The environment has been streamlined and improved making trusts largely unnecessary.

        • I agree, what might be the deeper plans of the Wizard. I think there might be deeper ramifications brewing , especially as it deals with mental capacity, health, and records.
          The best way to get what you truly desire is to push ever so gently.

      • Unfortunately for some of us, we live in Illinois, where you can’t use a trust to obtain NFA items and many CLEOs simply refuse to sign off. I understand you might have to change how you do things, but this ruling is opening up the door to NFA for alot of people of the gun. I call net win

        • I commiserate with your pain sir. Fortunately, the CLEO in my part of the state (surprisingly near #chiraq) are far more amenable to this than you would expect. Then again, they live a few miles from one of the largest gun stores in Illinois, so it would be surprising if they were rabid antis.

          To those of us stuck behind enemy lines, this ruling is a HUGE step forward. It might inconvenience some people, but it will help far far more. I always saw NFA trusts as gimmicks that only exist because the regulatory environment is jacked up. If we can make the environment streamlined to the point where trusts are unnecessary, I would consider it a very good thing. Now all we need is rules for shared custody of NFA items amongst family member and inheritance clarifications. If those go through, NFA trusts may be able to be relegated to the pages of history.

  6. On the whole, a non issue for the general public and 99% of gun owners.
    The <1% who got screwed for no reason are the NFA trust owners.

    Way to go…. get fingerprints, photos, and more background checks on the most behaved and most law-abiding citizens out there. Forget the criminals and yahoos.

    • On the balance, though, all other NFA owners and potential owners get a leg up. I think we can live with this.

  7. Can any vets chime in here….

    If I understand correctly, and I’m asking for clarification and correction here for my own understanding…

    If a vet declares they can’t handle their finances, they can get additional benefits. However, the the gov wants to make it so that if you can’t handle your finances, then they want to prohibit you from being able to purchase a firearm.

    The article here is about social security recipients… but I think the “competency” thing is the connection they are trying to make with vets so they can work toward disarming more of them.

    Can someone help me understand this a little better?

    • The rule making is still in underway. From reading other proposals and analysis, I would say that under this rule, an individual (vet or non-vet) will be a impacted when all of the following are met: 1) deemed mentally defective by competent authority, 2) demonstrate the inability to participate in contracts thereby necessitating the use of an agent for execution of business affairs. IOW, if you’re legally crazy and so much so that you have to hire someone to take care of your bidness, you won’t be eligible to receive federal money and will most likely be required to surrender your firearms until you’ve gone through the yet-created appeals process.

  8. Let the press have their fun with false headlines. I hope all the anti’s lap them up and dance giddily now that the “loophole” has been closed.
    They really don’t care about the real world at all do they? It’s all fantasy with them. Fantasy and delusion.

    • Exactly. Like I said, kind of frustrating to see all that ignorance out there–and I feel bad for the ordinary folks who are now fretting about being able to sell grampa’s old single-shot to the farmer down the road. But in the end, the Big Zero has not really done significant harm to gun rights with this, so if it satisfies the gun-grabbing fools that actually believed in a “gun-show-loophole”, so be it.

  9. I’m still very leary of the “in the business” line. Vague language is left vague so it is open for interpretation, I don’t want to find myself at the wrong end of an ATF agent’s interpretation of the vague law.

    • Agreed. See my very realistic scenario below that could affect almost every firearm owner at some point.

    • Selective enforcement is a favorite tool of tyrants. Though, I have to admit, this isn’t nearly as bad on the face of it as what I was expecting. I’m happy to be wrong, thus far. But if you have ever donated money to Ted Cruz, or are a member of any conservative organization, or especially if you have publicly spoken out against leftists, you might want to be careful if you sell any firearm. Full compliance with local, state, and Federal law might not be enough to keep you out of trouble.

    • As far as I can tell, this new rule is merely a codification of the elements already defined by case law that may be used in the determination by a trier of fact (judge or jury) whether any given individual is “in the business.” It is unlikely in most cases that a single factor will be enough. For example, all but one pistol I have purchased came in a nifty plastic case with foam cutouts. Selling one of these firearms with the case would be considered selling “in the original packaging,” but will not be enough to show that I am “in the business.”

  10. Now all we need to do is have the blabbermouths shut the hell up about the CLEO signature removal before the liberals figure out they’ve been had.

  11. Am I mistaken, or was not one feature of the upcoming EO supposed to be adding people who have a financial custodian to the prohibited persons list on NICS? As I understand it, before now there was some overreach by the VA in trying to make this classification a thing but it never had any higher sanction. If the President is going to add a new type of prohibited person, I’d call that a pretty big deal.

  12. If I am reading all of the details correctly, the ATF can claim that selling just one or two firearms at a profit means that a person is “in the business” of selling firearms.

    Let’s say that I purchased a high-quality stainless steel .357 Magnum revolver 8 years ago on sale for $450. I kept it in mint condition with its original packaging. For whatever reason, I want to sell that revolver and someone is happy to pay me $600 for it today. Along the same lines, let’s say that I also purchased a Mosin Nagant rifle 6 years ago for $100 and decide to sell it to someone who is happy to pay me $200 for it today. If I sell both firearms and make a total “profit” of $250, does that mean the ATF can claim that I am “in the business” and try to prosecute me?

    If that is the case, that is utterly and totally bull$hit. People buy firearms all the time and decide incidentally to sell them years later — quite often for more than they paid for them. To claim that those people are “in the business” is ridiculous.

    • In order to file a charge, the ATF would have to prove, as a matter of law, that you…

      1. Intended to make a profit.
      2. DID make a profit. (Good luck on that one, as the original sale price is not recorded anywhere.)

      While it’s possible, it’s highly improbable. Your defense would consist simply of pointing out that you bought more firearms than you sold and the case would be (at worst) dismissed.

      • Assuming an honest judge and prosecutor, you would be correct that those elements would need to be proven to get a conviction. They don’t need to convict to effectively ruin you life, though. They just need orders and the will to do so.

        • True, but that was the case before this ruling anyway. From a legal standpoint, it changes nothing.

      • Who said anything about “profit”? Unless that is explicitly stated in the EO, the net gain/loss is of no relevance. “In the business of” just means you’re selling something. Not for profit concerns carry out “business” just like those looking to make money.

    • Yup, essentially the equivalent of the Securities and Exchange Commission forcing you to get a trading/broker license if you’d like to sell two stocks/year and make a profit. Utter and complete bull$hit.

    • I think you’re also assuming that the ATF will have the budget and resources to go after every private sale. With 300+ million guns and 100+ million gun owners, they won’t. If you read between the lines of the press release (“…courts have upheld convictions for dealing without a license when as few as two firearms were sold or when only one or two transactions took place, when other factors also were present”), you’ll see that these convictions have already happened. So any firearm you’ve sold in the past has already held up against this standard.

      Regarding the profit angle, it wouldn’t be difficult to prove that your monetary profit wasn’t a profit at all. For example, that $100 profit you may make on the Mosin may be offset by the hours you personally spent tweaking the rifle (i.e. removing cosmoline, polishing the trigger, cleaning the stock, etc.). Remember, your time has monetary value. No different than if you brought it to a gunsmith to have these things done.

    • The big thing that a lot of people seem to be missing is that the vague language was already the law. This order changes nothing in that regard. And yes, “burden of proof” is a thing. And so is the fact that there aren’t enough ATF agents to follow every gun owner around to see if he is selling a gun or two. And the specific language regarding “selling part of a collection” is still there. Overall, ATF has no more discretion now than they already had. I don’t see the reason for the excitement here.

    • Actually, according to the ATF’s guidance document which is now available, no you wouldn’t need an FFL for that transaction. Unfortunately, I don’t have the link for the document at hand, but it is easy to find. Frankly, I’m assuming that BO has not read the guidance, because it’s not something with which he’d be happy.

  13. So one aspect that you all are forgetting about the NFA part not being “too bad”……. this kills Eforms. requiring prints and photos (atleast under the current system) means that Eforms will no longer be an option. they just sent the whole system technologically back to 1934, after ATF had finally made into the late 80’s (lets face it Eforms is about 80s level technology the way they implemented it)

  14. What about the guy who invested in a couple crates of arsenal-refurbished Mosin Nagant M91/30s, and has been flipping them cheap (1) as a community service and (2) to recoup his costs plus a little walking around money for his time driving to meet buyers. Suppose he’s in a jurisdiction that requires government permission even for private sales between individuals, yet he’s still been playing along anyway, following all the rules.

    Now he’s a military arms merchant-of-death, in the business of selling a vast arsenal of assault rifles, right?

  15. “I’m surprised at just how little the President is stretching his authority and exercising his executive muscle.”

    This is what I fear most. The political long game of democrats and unelected government employees interpreting their charge. Every small infringment scours the foundation of the Second Admendment and erodes our liberties.

    The importance of this election cannot be understated. The call to arms is to level the most devastating weapon against a representative. A pen marking their opponents box.

  16. @Nick Leghorn

    You missed a big item Nick. The POTUS wimped out because of the 2016 election. If he was too harsh, the political calculus is that is would rally gun owners to actually come out an vote against Hillary.

    He already has the issue that the economy could take a dive again depending on what happens with China, middle east and Europe. Add to that hell, the agitation of gun control, and he could surely sink his 3rd term agenda with Hillary. With Hillary, they have a real chance to elect 1 maybe 2 Left SCOTUS to bench and pretty much own the courts not to mention they can continue to stack the federal courts with the brain dead left.

    That is why IMHO he wimped out and I am sticking to it.

    • If Hilarity is the DFL Candidate, the dems will have already alienated the majority of their potential voters

  17. According to Judge Andrew Napolitano on Fox News, Obama’s executive order will define you as a dealer if you try to sell either at least two guns or more than two guns.

    • I have a lot of respect for Judge Nap and usually agree with him, but I think he’s basing his opinion on the hype at this point and not the actual content. Or he’s just succumbing to his refreshing Libertarian streak. 🙂

    • No, he is dead wrong:

      The ATF just issued these rules, which have been the rules in place all along. Take a look at the examples the ATF provides:

      “Bob inherits a collection of firearms from his grandfather. He would rather have cash than the firearms, so he posts them all online for sale. He makes no purchases, but over the course of the next year he sells all of the firearms he inherited in a series of different transactions. Bob does not need a license because he is liquidating a personal collection.”

      “David enjoys hunting and has a large variety of hunting rifles. He likes to have the newest models with the most current features. To pay for his new rifles, a few times a year David sells his older weapons to fellow hunters for a profit. David does not need to be licensed because he is engaging in occasional sales for enhancement of his personal collection.”

      “Scott has been collecting high-end firearms for years. In the six months before his son is about to enter college, Scott sells most of his collection in a series of trans-actions at gun shows, on the Internet, and to family and friends to provide funds to pay his son’s college expenses. Scott does not have to be licensed, because he is liquidating part of a personal collection.”

      “Debby has three handguns at home, and decides that she no longer wants two of them. She posts an advertisement in the local newspaper and sells the two handguns to a local collector. Debby does not need a license because she is not engaging in the repetitive purchase and resale of firearms as a regular course of trade or business.”

      You can sell some firearms you no longer want/need without worrying about the ATF coming down on you. They did NOT outlaw private sales.

  18. I’m not a lawyer, but aren’t these new rules concerning NFA trusts, rewriting the legal behavior of revocable trusts? NFA trusts are just revocable trusts used for the purpose of buying and possessing certain firearms or their suppressed accessories. If the anti-gun fascists can insert qualifiers into a boilerplate legal document for NFA firearms, what else can they demand qualifiers for? The hypocrisy here is revealing. These same people who scream that a legal fictitious entity, like a corporation, isn’t a person when it involves political campaign donations, are now asserting that a legal fictitious entity, like a trust, is actually a person when it involves Fedgov restricted firearms.

  19. Meh-I see massive non-compliance and a serious lack of manpower. And a huge increase of the Underground/blackmarket economy. We’ll see…

  20. All show no go. The Executive Order essentially tells the ATF to enforce currently existing law, promises a pittance for the mental health issue, asks Social Security to help identify those who may not be mentally or emotionally fit to own a firearm, and removes the CLEO approval requirement from the NFA item acquisition process.

    The only real issue is that, just like yesterday, you may not realize you’re in the business of selling firearms until you’re arrested, convicted, imprisoned and fined for dealing without an FFL (because the law can’t define it with any more clarity than “we know it when we see it”).

    So all that really happened was a few touching moments for the media.

  21. I guess I’m not the only one getting the feeling that Obama has never actually had any intention to interfere with the 2A, and that anything he’s ever said or done about it was just for show. Like he knows he shouldn’t mess with the 2A, but that he also has to at least appear to do something the antis happy. He’s not an idiot (though many of us like to believe he is), so the fact that this hyped up “executive action” does little has to be intentional. He’s got to know that the antis are seeing this as a major victory, while those of us on the other side are saying “Oh, is that all?”.

  22. The most interesting part of all of this is a line from the Attorney General re dealer vs. not=dealer in effect: “The exception for private transfers is still in place.”

    So, she’s talking about a universal “Mother, may I?”, which they have the right and authority to do, with “exceptions.”


    People are free to do as they will. You get to meddle in narrow circumstances. The transfer rules for dealers is the exception, vs. the general standard that people get to do whatever they want. And the justification is backwards: you have to justify particular impositions on particular people, vs. people having to justify an “exception” to your mandate for How Things Should Be.

    Her thinking is completely backwards, if consistent with this administration and most of DC. The country is not yours to order to your will. You are assigned particular things we want you to get done for us. You may ask for authorities to use. We may say “no.” You don’t have boundless authority. Nor will you get any authority you ask for.

    We may say “no.” We’re unlikely to give you more authority, until you can demonstrate that you are using what you have well.(*) If you keep forgetting all this (especially to even ask), we may just say “no” to everything you ask for until you get the hint that you work for us, for our benefit, as we see it.

    (*) Let’s ban, lead, no “armor piercing”, no, something else bullets. And we still don’t have a consistent definition of a “firearm.” And our background check system doesn’t frakking work. And, BTW, we were shipping guns to Mexico. And how many agents, running around … oh, I just can’t.

    You’d have plenty of money for processing background checks if you weren’t wasting piles of it on lobbying, misdirection, rule making that nobody asked for, illegal transfer operations, and more.

    And really big fires. light a few less fires, and you don’t need money or people for the new exec orders.

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