Obama’s Executive Action Not Only Unlawfully Expands Federal Law, But Operates To Convert Private Sellers Of Guns Into Gun Dealers
President Barack Obama claims that his executive action, using the mechanism of executive orders to expand gun background checks, falls within his lawful authority. But does it? For all his pontificating at the CNN Town Hall Meeting, televised on Thursday, primetime, that one remark, stated and reiterated during the Town Hall Meeting, is deserving of close consideration and dissection because, if Obama is wrong, then we can dispense with any further discussion of the purported merits of his antigun agenda.
We begin with one incontrovertible fact. The very use of executive orders is fraught with peril because the President is essentially making law, not executing law. Article I, Section 1 of the U.S. Constitution makes clear that all legislative functions rest with Congress. The making of law does not rest with the President. The President’s duty is not to make law but to execute the laws that Congress makes.
In accordance with Article II, Section 3 of the U.S. Constitution the President, “shall take Care that the Laws be faithfully executed.” This means that the Chief Executive has no authority to tell Congress what Congress must do. But that is precisely what the Chief Executive, Obama, does when he issues an executive decree. He is in fact saying to Congress: “you haven’t done what I want you to do, so I will take action myself.” Well, Congress doesn’t work for the President of the United States. Congress works for the American People. If Congress doesn’t legislate in the manner that the President wishes, or if Congress fails to legislate at all in an area that the President wants, that failure to legislate is not lawful grounds for the President to do so. But, that is precisely what the President is doing here.
One of the four key features of the antigun executive orders President Barack Obama plans to issue in the coming days or weeks pertains to expansive gun background checks. President Obama has set forth his intentions in his “Fact Sheet” what he intends to do. Just a few of the significant ways in which Obama is taking aim at Congress and at the Second Amendment involves gun sales. Through his executive orders he intends to:
“Clarify that it doesn’t matter where you conduct your business—from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks. Background checks have been shown to keep guns out of the wrong hands, but too many gun sales—particularly online and at gun shows—occur without basic background checks. Today, the Administration took action to ensure that anyone who is ‘engaged in the business’ of selling firearms is licensed and conducts background checks on their customers. Consistent with court rulings on this issue, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has clarified the following principles:
A person can be engaged in the business of dealing in firearms regardless of the location in which firearm transactions are conducted. For example, a person can be engaged in the business of dealing in firearms even if the person only conducts firearm transactions at gun shows or through the Internet. Those engaged in the business of dealing in firearms who utilize the Internet or other technologies must obtain a license, just as a dealer whose business is run out of a traditional brick-and-mortar store.
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.
There are criminal penalties for failing to comply with these requirements. A person who willfully engages in the business of dealing in firearms without the required license is subject to criminal prosecution and can be sentenced up to five years in prison and fined up to $250,000. Dealers are also subject to penalties for failing to conduct background checks before completing a sale.”
Is Obama saying that anyone who sells a firearm is ipso facto a ‘dealer of firearms’ and, therefore, according to Obama, ‘in the business of selling firearms?’ It would seem so. For, Obama has not clarified what it means to be in the business of selling firearms but, rather, has muddied the waters. Both in the above Fact Sheet and at the Town Hall meeting, Obama fails to clarify what it means to be a “gun dealer” and what it means for a person to be “in the business of selling firearms.” And, this is clearly intentional. Obama sees anyone, who sells or transfers a gun, is a “gun dealer” – that is to say, “a person who is in the business of selling firearms.” But, are these expressions truly nebulous? Not at all!
Contrary to what Obama would have the American public believe, the phrases, ‘dealer in firearms,’ and, ‘in the business of selling firearms,’ are not subject to myriad definitions, dependent upon the personal whim of the President. They are legal terms of art, specifically defined in law by Congress. They are not subject to tweaking by the President.
Under 18 U.S.C. § 921(a)(11), “The term ‘dealer’ means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term ‘licensed dealer’ means any dealer who is licensed under the provisions of this chapter [18 USCS §§ 921 et seq].”
Case law further clarifies the meaning of ‘dealer in firearms’ and ‘in the business of selling firearms.’ In the annotated notes of the U.S. Code, there are several cases that clarify the meaning of these important expressions. See, e.g. United States vs. Fifty two Firearms, 362 F. Supp. 2d (MD Fla. 2005). A “person is ‘engaged in the business of selling firearms’ at wholesale or retail’ under 18 USCS § 921(a)(21)(C) if that person devotes time, attention, and labor to dealing in firearms as regular course of trade or business with principal objective of livelihood and profit through repetitive purchase and resale of firearms, but such person does not include person who makes occasional sales, exchanges, or purchases of firearms for enhancement of personal collection or for hobby, or who sells all or part of that person’s personal collection of firearms.” And, in United States vs. Masters (CA4 SC 1980), the fourth Circuit Court of Appeals, said, “For defendant to be ‘dealer’ within meaning of 18 USCS § 921, there must be willingness on defendant’s part to deal, profit motive and greater degree of activity than occasional sales by hobbyist; defendant’s primary business need not be dealing in firearms nor need he necessarily make profit from such dealings; showing that defendant had guns on hand or was ready and able to procure them and sell them to such persons as might accept them is sufficient to establish defendant as ‘dealer’.”
Obama wishes to make anyone who sells a firearm into a “dealer of firearms.” In so doing, he would make it a crime for a person, even the occasional “hobbyist,” to lawfully sell or, for that matter, even to give away a firearm to another person, if the transferee does not have an “FFL.” And, in so doing, Obama wishes to do away with the very possibility of a “private sale” or, for that matter, even a “private transfer” of a firearm that does not amount to a sale or trade in and of firearms. He cannot lawfully do this because that amounts to an impermissible expansion of federal law.
Now, Obama claims that his executive actions, directed to firearms, fall within existing federal law and that he is only proposing regulations to effectuate existing federal law and not creating new law. But, that is absolutely false because, in his executive actions, he is expanding the very concept of what it means to be a person who is “in the business of selling firearms.” When Obama attempts to transform anyone who sells or transfers a firearm into a person who is “in the business of selling firearms,” he is attempting to make the transferee of a firearm, who is merely a “hobbyist,” into a criminal who is impermissibly selling or transferring a firearm, absent a federal license, in violation of 18 USCS Section 1922(a)(1) and 18 USCS Section 924(a). In effect Obama is attempting, unlawfully, to turn the occasional hobbyist into a “criminal arms dealer,” namely, someone who is, in fact, in the business of selling firearms, but is doing so, as a criminal, selling to other criminals, in clear contravention to federal law.
For the federal government to prove that a person was operating unlawfully as a dealer in firearms – essentially, a criminal arms dealer – “the federal government must prove the status of the defendant as a ‘dealer in firearms.’ In order to satisfy this burden the Government need not prove that the defendant’s primary business was dealing in firearms or that he necessarily made a profit from such dealing; ‘it must (however) show a willingness (on the defendant’s part) to deal, a profit motive, and a greater degree of activity than occasional sales by a hobbyist.’ United States v. Huffman, (4th Cir. 1975) 518 F.2d 80, 81, cert. denied, 423 U.S. 864, 96 S. Ct. 123, 46 L. Ed. 2d 92; United States v. Tarr, (1st Cir. 1978) 589 F.2d 55, 59.”
Thus, under federal statute and federal case law, in order for the government to prove that the person, who is selling a firearm to another person is doing so unlawfully, it is not enough for the government to prove that the seller of the firearm(s) is attempting to make a profit from the sale of a firearm or firearms. The government must also prove that the seller is not making an occasional sale of a firearm “as a hobbyist.” In other words, the federal government must prove, under existing law, that the person who is making a sale of a firearm or firearms is not a “criminal arms dealer” – a criminal who is selling firearms to make a profit.
Obama is unlawfully expanding the notion of a “criminal arms dealer” to a law-abiding citizen, who is really only a “hobbyist,” under existing federal law. Such an attempt by Obama amounts to an impermissible expansion of federal law, not a theoretical permissible executive action, that amounts merely to regulation within existing federal law. When Obama expands federal law, he is entering into the purview of Congress, in contravention to the U.S. Constitution and in contravention of the Separation of Powers Doctrine because he is legislating – that is to say – he is making new law. He is not merely effectuating the intentions of Congress through the promulgation of rules within the framework of existing law.
Obama begs the very question at issue by asserting that anyone who transfers firearms to another is, ipso facto, a “gun dealer” and “in the business of selling firearms” under federal law and is doing so illegally if that person does not have a federal firearm’s license (FFL). Why does Obama want even private sellers of firearms — “hobbyists” — to obtain a federal firearm’s license? He wants private sellers of firearms to obtain a federal firearm’s license because, licensed dealers in firearms are required to perform a criminal background check under existing federal law, pursuant to the “Brady Handgun Violence Prevention Act of 1993,” 107 Stat. 1536; 103 P.L. 159; 1993 Enacted H.R. 1025; 103 Enacted H.R. 1025, as codified in 18 U.S.C. § 922. A person who is not “in the business of selling firearm,” is under no such legal mandate to conduct an national instant criminal background check. In fact, a “hobbyist” cannot even access that system precisely because that person doesn’t have an FFL!
So, what is Obama doing? Just this: he is placing the “hobbyist” in an impossible position if that “hobbyist” wishes to sell, trade, gift to, or otherwise, in some manner, transfer his firearm to another person. Obama is saying to that person: “we are assuming that you are a gun dealer and, if you are a gun dealer, you must undertake a criminal background check on the transferee. But, in order to be able to have access to FBI NICS files, you must first obtain an FFL. If you do not have an FFL, you better get one, if you can. If you can’t obtain an FFL, do not attempt, under any circumstances to transfer a firearm to another because my Administration will assume that you are an unlawful arms dealer, and I will see to it that the Justice Department prosecutes you to the fullest extent of the law.”
Do you understand what more Obama is attempting to do through his unlawful executive actions? He is using his Office to enact new gun laws. In effect he is precluding, under threat of federal criminal indictment, the transfer of any firearm by one private law-abiding gun owner to another private law-abiding gun owner. Obama is not attempting to close a so-called “gun loophole.” He is in effect precluding every individual from transferring firearms, regardless of venue. This amounts to the unlawful regulation of commerce by the Executive Branch to stifle legitimate trade in firearms between two law-abiding individuals who happen to be “hobbyists.” Moreover, Obama’s unlawful executive actions negatively impact the absolute and exclusive interest that a person has in his or her own private property.
If Obama admits to this but argues that his executive directives are necessary to prevent a private person, who is not a gun dealer, from transferring a gun in interstate commerce, his executive directive is redundant because, under, 18 USCS § 922(a)(1)(A), “it shall be unlawful for any person except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce.” Thus, if I, for example, as a “hobbyist,” who is not, then, in the business of selling firearms, wish to sell a gun over the internet, and I am not a licensed dealer in firearms, I cannot lawfully do so in any event. I may, however, transfer a firearm to another through the mediation of a licensed dealer who will then be required to perform a necessary background check on the transferee. Thus, further regulation of firearms’ sales on or over the internet aren’t necessary. Such sales are already regulated!
What about sales of guns at gun shows? Well, gun shows, too, do not present a problem. Most sellers of firearms at gun shows are licensed dealers in firearms and, so, must, under present federal law, perform a criminal background check on anyone whom the dealer is transferring the gun to. Now, if I am not a licensed dealer in firearms, and I, as a law-abiding American and gun owner, wish, as a private person — a hobbyist, not a licensed dealer in firearms — to sell a firearm to another person, at a gun show, I can make a transfer of a firearm to another, without performing a background check, but, that does not mean that I am permitted to sell a firearm to a person who is not permitted to possess a firearm. Under 18 USCS 922(d), it is unlawful for anyone – whether a licensed dealer in firearms or a private individual – to sell to individuals who are not permitted to own or possess a firearm. These include convicted felons, fugitives from justice, an individual who has been adjudicated a mental defective or who has been committed to a mental institution or who is an illegal alien. So, then, if I, as a private individual and law-abiding American citizen and gun owner and, as defined in law, a “hobbyist,” not a “licensed dealer in firearms,” offered a firearm for sale or trade, to a person, whom I did not know, and that person was a convicted felon who cannot lawfully own or possess a firearm, I have committed a crime in taking part in that sale, and I can and ought to be prosecuted. So, I, as a law-abiding citizen, have to be damn careful whom it is that I am transferring that firearm to.
Now, will criminals sell firearms to other criminals? Of course they will. And they will do so in venues other than at gun shows which are likely to be carefully monitored by the State police. Obama’s executive orders, though, clearly are not directed to precluding firearms’ transactions among criminals. They are directed to further restricting gun transactions among law-abiding Americans. Obama’s goal, is — as is the penultimate goal of all antigun groups — just this: restricting the number and kinds of guns that a law-abiding citizen may own; and restricting the extent to which an individual may exercise control over his or her own property. What these executive actions of Obama won’t do – and, in fact are not designed to do – is curb criminal sales of firearms. They are specifically designed to curb what has, prior to Obama’s executive actions, amounted to the lawful transfer of firearms between and among law-abiding Americans, who do not fall, under the federal legal definition of ‘dealer in firearms,’ and ‘in the business of selling firearms.’
Obama intends to extend the scope of federal law beyond that which Congress has authorized. He cannot do so legally. Moreover, there is no need for further federal law. There are no loopholes. So, there is nothing that requires closing.
Obama fails to appreciate and respect the fact that our federal statutes and federal case law are sufficiently broad to encapsulate all firearms’ transfers in every conceivable venue. Criminal transfers of firearms would be effective if existing federal law was enforced. They are not. But, that is not the fault of Congress. It is the fault of the Chief Executive. Obama, who fails to enforce federal law.
Obama also fails to appreciate the sanctity of the Separation of Powers Doctrine upon which a Free Republic is able to survive and thrive. The very structure of the federal government as set forth in the Constitution establishes that no one Branch may subsume the duties of the other two within it.
Obama’s executive actions are demonstrative of his disrespect for Congress, for the Constitution, and for the Separation of Powers Doctrine. Nothing he can assert or suggest, predicated on his personal notion of morality, and personal distaste for firearms ownership and firearms possession among law-abiding Americans can condone and justify his actions. But, then, Obama is not interested in the rule of law. He has a personal agenda: the very dismantling of the Bill of Rights, using, as singular pretext, his stated concern to curb firearms’ violence.
Congress has, in the “Brady Handgun Violence Prevention Act of 1993,” 107 Stat. 1536; 103 P.L. 159; 1993 Enacted H.R. 1025; 103 Enacted H.R. 1025, as codified in 18 U.S.C. § 922, as cited supra, made it unlawful for a licensed importer, manufacturer, or dealer, to sell, deliver, or transfer a handgun to a person who is not licensed under 18 U.S.C. § 923 absent the appropriate background information on the individual as set forth in Statute. 18 U.S.C. § 923(a) says, in pertinent part, “No person shall engage in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, until he has filed an application with and received a license to do so from the Attorney General. The application shall be in such form and contain only that information necessary to determine eligibility for licensing as the Attorney General shall by regulation prescribe and shall include a photograph and fingerprints of the applicant. Each applicant shall pay a fee for obtaining such a license, a separate fee being required for each place in which the applicant is to do business.” Other federal law, cited supra, precludes anyone, whether a licensed dealer in firearms or not, to lawfully transfer a firearm to a person who is not permitted under federal law to own and possess firearm.
Obama’s executive actions are unnecessary if he believes there are loopholes in the law – for there aren’t any. And, they are otherwise inscrutable. Obama is unlawfully attempting to preclude firearms’ transfers among law-abiding Americans and gun owners who are not licensed dealers in firearms and who would not wish to obtain a federal firearm’s license and, more to the point, could not obtain a federal firearm’s license had they wish to do so precisely because they are not in the business of selling firearms.
Obama’s executive directives are a scarcely disguised attempt to hide his an intent to control the distribution of one’s private property.
Again, what President Obama is doing, surreptitiously, insidiously, and unlawfully, through his executive directives, is destroying the very concept of a “private sale” of a firearm, and he does this by unlawfully transforming, through Presidential edit, every individual, who wishes to sell a firearm, into a person who is in the business of selling firearms and who must therefore obtain a federal license to sell firearms. Federal firearms’ licenses are expensive. Even to attempt to obtain one is a time-consuming process, administered through the BATF. It is difficult to acquire – impossible, really, for a person who simply owns one or two or a few firearms and who wishes to transfer them to another law-abiding American and who cannot legitimately make the case that he or she is anything other than a “hobbyist.” Obama’s executive directives are not necessary because they are not directed to curbing transfer of firearms among criminals. These executive directives are directed to revising what it means to be a person who is in the business of selling firearms and who is a licensed dealer in firearms. Obama’s executive directives are inconsistent with current federal law; they impermissibly expand federal law; and, lastly, they are inconsistent with current BATF regulations, promulgated on what federal law actually says about who is a dealer in firearms and not on what the President would like the definition of ‘dealer in firearms’ to mean.
Obama cannot lawfully prevent private sales of firearms; he cannot require a private seller, who is not in the business of selling firearms, to obtain a federal license – which is impossible for a private individual to obtain anyway; and he cannot require a private seller of a firearms to perform a federal background check. But, Obama doesn’t care. He doesn’t care about limitations on executive authority. He doesn’t care that he is placing law-abiding gun owners, who are not gun dealers, and who may wish to transfer a firearm to another law-abiding American, in a precarious, impossible position. He doesn’t care about any of this. He intends to press ahead with the antigun agenda: destruction of the fundamental right of the American people to keep and bear arms.Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.