{"id":90832,"date":"2023-03-15T19:15:06","date_gmt":"2023-03-16T00:15:06","guid":{"rendered":"https:\/\/milesfortis.com\/?p=90832"},"modified":"2023-03-15T19:15:06","modified_gmt":"2023-03-16T00:15:06","slug":"90832","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=90832","title":{"rendered":""},"content":{"rendered":"

Biden’s Plan To Unilaterally Expand Background Checks for Gun Buyers Is Legally and Logically Dubious<\/a>
\nThe president wants to redefine federally licensed gun dealers in service of an ineffective anti-crime strategy.<\/p>\n

President Joe Biden on Tuesday issued an\u00a0executive order<\/a>\u00a0that the White House\u00a0says<\/a>\u00a0will move federal regulation of gun sales “as close to universal background checks as possible without additional legislation.” The order relies on a legally contentious redefinition of who qualifies as a gun “dealer” and therefore must obtain a federal license and comply with related rules, including customer background checks.<\/p>\n

Federal law\u00a0defines<\/a>\u00a0a gun dealer as someone who is “engaged in the business of selling firearms,” which until last year was defined as “devot[ing] 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 2022\u00a0Bipartisan Safer Communities Act<\/a>\u00a0excised “with the principal objective of livelihood and profit” and replaced it with “to predominantly earn a profit.”<\/p>\n

As the Congressional Research Service\u00a0explains<\/a>, that change was “intended to require persons who buy and resell firearms repetitively for profit to be licensed federally as gun dealers, even if they do not do so with ‘the principal objective of livelihood.'” According to the amendment’s supporters, “there was confusion” about whether the definition of “engaged in the business” covered “individuals who bought and resold firearms repetitively for profit, but possibly not as the principal source of their livelihood.” The statutory definition still explicitly excludes “a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”<\/p>\n

Biden’s order does not say exactly how he intends to expand the number of people who are classified as dealers. Instead it instructs Attorney General Merrick Garland, whose department includes the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), to “clarify the definition of who is engaged in the business of dealing in firearms.” Garland may do that through “rulemaking, as appropriate and consistent with applicable law.”<\/p>\n

<\/p>\n

Back when Biden was vice president, the Obama administration\u00a0considered<\/a>\u00a0a rule that would have covered anyone who sells 50 or more guns a year. “While the White House Office of Legal Counsel and then\u2013Attorney General Eric H. Holder Jr. initially concluded the regulation was legally defensible,”\u00a0The Washington Post<\/em>\u00a0reported<\/a>\u00a0in 2015, “some federal lawyers remained concerned that setting an arbitrary numerical threshold could leave the rule vulnerable to a challenge.” ATF officials “objected that it would be hard to enforce and that it was unclear how many sellers would be affected by the change.”<\/p>\n

Unfazed by those concerns, Vice President Kamala Harris\u00a0pitched<\/a>\u00a0an even more ambitious idea when she ran against Biden for the 2020 Democratic presidential nomination. Under her plan, a hobbyist or collector who sold five or more guns in a single year\u2014one-tenth the cutoff considered under Obama\u2014would have been required to obtain a federal license and conduct background checks. That proposal was plainly inconsistent with both the original and amended versions of the law.<\/p>\n

Whatever rule Garland comes up with, it will be aimed at accomplishing something that Congress has repeatedly declined to do: require background checks for gun sales that are currently considered “private.” That plan is consistent with Biden’s\u00a0other attempts<\/a>\u00a0to impose gun control by executive fiat.<\/p>\n

Any “arbitrary numerical threshold” would ignore the clear congressional intent to leave hobbyists and collectors alone. It also would ignore the requirement that a dealer be engaged in a “regular course” of “repetitive purchase and resale,” motivated mainly by profit. To survive the inevitable legal challenges, Garland’s regulations will have to take those criteria seriously.<\/p>\n

Assuming that the Biden administration can produce a rule that passes legal muster, would it be worth the effort? There are several reasons to think that expanding the background-check requirement would not produce the public safety benefits that Biden imagines.<\/p>\n

As those skeptical ATF officials noted during the Obama administration, a wider definition of gun dealers “would be hard to enforce.” These are, after all, private sales, which by their very nature are difficult to detect, especially if they involve just a few guns a year.<\/p>\n

The\u00a0evidence<\/a>\u00a0indicates that state laws requiring background checks for private sales, which in practice means they must be completed through federally licensed dealers, are\u00a0widely flouted<\/a>\u00a0by gun owners who object to the added expense and inconvenience. It seems unrealistic to expect stronger compliance with a requirement that gun owners\u00a0become<\/em>\u00a0federally licensed dealers before they are allowed to dispose of their property.<\/p>\n

The president\u00a0says<\/a>\u00a0he wants to prevent mass shootings. But mass shooters typically do not have disqualifying criminal or psychiatric records, meaning they\u00a0would not be stymied<\/a>\u00a0by background checks. Many pass background checks before they commit their crimes, while others obtain guns from relatives. According to a National Institute of Justice\u00a0report<\/a>\u00a0on public mass shootings from 1966 through 2019, just 13 percent of the perpetrators obtained firearms through illegal transactions. Since those sales were already illegal, it is doubtful that additional restrictions would have made a difference.<\/p>\n

Biden also aims to prevent “daily acts of gun violence.” But ordinary criminals generally\u00a0obtain firearms<\/a>\u00a0from informal sources, such as friends, acquaintances, relatives, and the “underground market,” that are unlikely to be affected by new regulations. Unsurprisingly, a\u00a02019 study<\/a>\u00a0found that California’s 1991 expansion of background checks “was not associated with a net change in the firearm homicide rate over the ensuing 10 years.”<\/p>\n

When gun buyers\u00a0are<\/em>\u00a0flagged by background checks, that does not necessarily mean they pose a threat to public safety. As\u00a0defined<\/a>\u00a0by federal law, “prohibited persons” include millions of Americans with no histories of violence, such as\u00a0cannabis consumers<\/a>\u00a0and other illegal drug users, people convicted of\u00a0nonviolent felonies<\/a>, and people who were subjected to\u00a0involuntary psychiatric treatment<\/a>\u00a0but never deemed a threat to others.<\/p>\n

Would-be gun buyers who fail background checks are\u00a0rarely prosecuted<\/a>\u00a0for illegally trying to purchase a firearm.\u00a0“These cases lack ‘jury appeal’ for various reasons,” noted a\u00a02004 report<\/a>\u00a0from the Justice Department’s inspector general.\u00a0One of those reasons: “The factors prohibiting someone from possessing a firearm may have been nonviolent or committed many years ago.”<\/p>\n

When unauthorized sales go through before background checks are completed because the allotted time has expired, the ATF often takes its time in retrieving those guns. The inspector general’s report\u00a0noted that ATF agents “did not consider most of the prohibited persons who had obtained guns to be dangerous and therefore did not consider it a priority to retrieve the firearm promptly.”<\/p>\n

Background checks, in short, do not pose a serious obstacle for mass murderers or run-of-the-mill thugs and usually flag people whom prosecutors and ATF agents do not view as dangerous. Naturally, Biden wants more of them.<\/p>\n","protected":false},"excerpt":{"rendered":"

Biden’s Plan To Unilaterally Expand Background Checks for Gun Buyers Is Legally and Logically Dubious The president wants to redefine federally licensed gun dealers in service of an ineffective anti-crime strategy. President Joe Biden on Tuesday issued an\u00a0executive order\u00a0that the White House\u00a0says\u00a0will move federal regulation of gun sales “as close to universal background checks as … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,50,8],"tags":[],"class_list":["post-90832","post","type-post","status-publish","format-standard","hentry","category-crap-for-brains","category-goobermint","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/90832","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=90832"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/90832\/revisions"}],"predecessor-version":[{"id":90833,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/90832\/revisions\/90833"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=90832"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=90832"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=90832"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}