There’s been a flurry of news about the impending executive orders from President Obama on gun control. There are few hard facts about what’s coming down the pipeline. But if you read the tea leaves with enough regularity you can see patterns emerge and get a glimmer of things to come. Let me channel my inner Hari Seldon and predict the immediate future of gun control in America . . .
There’s little doubt that the executive orders being readied are trying to close the so-called “gun show loophole,” a term that the civilian disarmament community now uses to cover any and all private party firearms sales. We have a pretty good idea of the specific avenue of attack: the “in the business” regulation of the FFL system.
The Federal Firearms Licensee (FFL) system was put in place by the Gun Control Act of 1968. The Act mandated that anyone “in the business” of buying and selling guns required a license from the federal government. Anyone engaged in interstate commerce in guns of any kind also needs a license. Under the Act, a private party can sell firearms from their personal collection – not for profit or business purposes – without federal oversight, provided the transaction occurs in their own state. No license required. No no background check required (because access to the NICS system requires an FFL, which the average person can’t get). It’s a reasonable carve-out given that the transaction isn’t profit-related and involves a legal product sold legally to a legal buyer without crossing state lines (so the interstate commerce clause of the Constitution doesn’t apply, and instead it leaves that regulation up to the individual states). Note: it’s illegal for anyone to knowingly sell any gun to a prohibited person. Period.
The “issue” in play, due to be the subject of President Obama’s executive order sometime next week: the definition of being “in the business” of selling firearms.
There’s no hard and fast number of guns an individual may sell that determines that he’s “in the business” of selling guns. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) takes a “we know it when we see it” approach. With their limited budget – courtesy of Congress’s suspicion of their intent – the ATF doesn’t have the resources to investigate individuals who push the envelope of the “in the business” provision to sell a large number of guns to private individuals.
Because President Obama has the ability to dictate various minor administrative changes through executive action, the President can set a benchmark for the number of guns sold or transferred that constitutes being “in the business of selling guns.” And he can do it without consulting Congress. It’s entirely within his Constitutional powers to do that. The real question: where will he set that bar? I’d say there’s about a 60 percent chance that the President will draw the line at five guns per year and a 40 percent chance that he goes all-in and lower the bar to selling a single gun.
I buy and sell guns more often than most, and I’ve sold far fewer than five guns this year. Setting the number at five is low enough to let gun control activists claim a victory, that they have shut off the dreaded “gun show loophole.” But it’s still high enough that the average American can continue buying and selling guns without any major impact. The bad news: if and when a Democrat president comes into office, she can lower that number to one under whatever pretense she desires at any time.
That’s the smart move. Then again, the very nature of gun control activism is based on a sense that guns are evil and punishing loathsome gun owners in any way shape or form is a worthy pursuit. So it’s entirely possible that Obama will go all-in declaring that anyone selling a gun is “in the business” of selling guns and needs a license. If that happens, we might see a much more vocal reaction from the population as they are now directly affected by the change. The biggest impact that would have on the chain of events is in influencing the next election, putting even more weight behind the “anyone but Hillary” argument.
If the EO goes through, millions of Americans will be forced to buy and sell guns through an FFL (as some states now mandate), where previously they bought and sold privately. Areas with a single dealer will see transfer fees go through the roof. Others might see a price war where fees drop to a nominal amount for person-to-person transfers. Either way, nearly all gun sales will flow through licensed dealers, with all sales being recorded, and a fee charged for each transaction.
The NRA will rightly proclaim that the EO is an egregious infringement on Americans’ right to keep and bear arms. I give it a 40 percent chance that Congress will pass a bill out of the House of Representatives to change things back the way they were, and a 25 percent chance such a bill bill passes the Senate. But that’s where it will end. There’s no chance President Obama will sign such legislation and even less chance that Congress has enough votes for a veto override.
The main problem: the average American doesn’t have a problem with mandating that every firearms transaction involve a federal background check. No matter how hard the NRA presses Congress to change the law it’s not politically viable. For those legislators who need to fight to keep their red seat from turning blue, rolling back Obama’s changes will be branded by the opposition as “re-opening the gun show loophole” and making America less safe.” It’s a rallying cry which pro-gun control pols would use to run roughshod over pro-gun right incumbents.
Meanwhile, the Second Amendment Foundation will file a lawsuit claiming such an executive order violates the reserved rights of the states to regulate commerce within their borders. The NRA might join in, but it seems like Allan Gottlieb does far better when he’s flying solo and sticking it to the man.
The lower courts will laugh the SAF out of their chambers, but they’ll persevere and file appeal after appeal hoping to get to the Supreme Court hoping for a definitive ruling. If they make it that far, I give the Supremes a 30 percent chance of hearing the case — given their past track record they don’t seem to want anything more to do with the Second Amendment and are happy to use the lower courts to do their dirty work.
Should the Supremes agree to hear such a case I make it toss-up as to whether they’d defend the right to buy and sell firearms without federal “supervision.” Even agreeing to hear the case would be out of character, so much like the rise of The Mule that’s something that my powers of deduction cannot penetrate.
In the short term, there’s not much the gun rights folks can do. Every avenue of attack is blocked, and even if the case were to wind its way through the courts, President Obama would be out of office before a judgement is handed down. Whatever President Obama puts in place would be the law of the land, at least as long as he’s in office.
Looking past 2016, things get murky . . .
Should America elect a Democrat as the next president, this would become the “new normal”: private firearms sales would be a thing of the past. The next president might well remove any lower limit and require every firearms sold to be done with a background check, all under the pretext of “cracking down on guns.” Congress would probably be incapable of passing new legislation to revamp the FFL system and restore the previous status quo. For the reasons stated above, even pro-gun Republicans would consider the “restore private sales” issue politically toxic.
If a Republican is elected president, the likelihood of this change being repealed would remain remote. With a re-election campaign only four years away and Democrats breathing down their necks, the new Republicans would want to tread lightly. Repealing this seemingly minor change would be very low on their to-do list. They would have to choose which hills were worth dying over. I doubt this would be one of them.
The best case scenario wouldn’t be a repeal of the executive order. The better option: Congress gets their act together and passes an update to the Gun Control Act of 1968 that allows for individuals to have a Federal Firearms License without being “in the business” of selling guns.
That would re-open the flood gates of private party sales (with background checks!) and enable guns to be shipped directly to the doors of Americans. This would have a similar impact to what Amazon did to the mom and pop stores in cities, leaving only the larger brick and mortar stores to duke it out for the remaining market share. While this would be the best possible outcome from this whole debacle, there’s no more than a 10 percent probability of it ever happening. That’s disappointing, but realistic.
The most likely scenario (and my 90 percent bet) is that nothing happens. Congress fails to act, the SAF lawsuit fails, and the executive orders remain in place. “Gun violence” continues unchecked – because this feel-good measure has nothing whatsoever to do with the real flow of illegal guns. It will only punish America’s law-abiding gun owners. As a result, gun control activists will continue to demand that “something must be done” — again, still. And the window of “acceptable” gun control solutions will creep further and further towards revocation of Americans’ Second Amendment rights, and we play the game again.
I hope I’m wrong.