12.30.2015 2

Will Obama ban private gun sales with midnight executive orders?

us constitution

By Robert Romano

Are you ready for President Barack Obama’s midnight executive orders on private gun sales? They are coming.

“The White House will likely go around Congress and require background checks for all ‘in the business’ of selling firearms,” reported Bloomberg News’ Paul Barrett on Dec. 28.

Although federal law already requires computerized background checks be conducted by licensed gun dealers, there is an exclusion under the law for certain private sales. Specifically, the law states gun dealers do “not include 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.”

Nor does it apply to “a person who makes occasional repairs of firearms, or who occasionally fits special barrels, stocks, or trigger mechanisms to firearms.”

That part of the law was actually not a part of the original Gun Control Act of 1968.

It was put in place in the Firearm Owners Protection Act of 1986 partly in response to a 1982 Senate subcommittee report finding that approximately 75 percent of prosecutions by the Bureau of Alcohol, Tobacco, and Firearms prosecutions were being “aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations.”

In other words, the law was being used by the government to target otherwise law-abiding gun owners, hence the reform. The Firearm Owners Protection Act passed on a bipartisan basis — at the time Democrats controlled the House, and Republicans controlled the Senate — by voice votes in both chambers. President Ronald Reagan signed it into law.

Agree or disagree with the law on its merits that is the context for the current statute.

Presumably, it is these private gun sales that Obama will be attempting to address in his executive order, although given the clear letter of the law, it is hard to see how he will actually get around the provisions that exclude occasional private gun sales from being considered “in the business” of selling firearms.

Those private sales are either excluded from the requirements or they are not, and under federal law, they are excluded, like it or not.

Of course that has not stopped Obama before from unilaterally changing the law to suit his political agenda when he lacks the support of Congress.

For example, Obama granted executive amnesty and legal status to millions of illegal immigrants with U.S.-born children under the guise of prosecutorial discretion simply because he could not secure votes in Congress to pass the immigration legislation he preferred.

But that is not our system of government. If Obama wants to have a debate about private gun sales, there is a forum for that, the U.S. Congress. And if he lacks the votes to get it done, nothing happens. It could become an election issue for members of Congress, but it is up to political parties to develop public support for their respective party platforms, elect members to Congress, and then follow through upon achieving majorities. Failing that, no action should be expected on any policy, even one on gun sales.

Bypassing Congress to block private gun sales or require background checks where federal law explicitly says none are required will only feed perceptions that Democrats want confiscate guns in violation of the Second Amendment or institute national databases of gun owners, not to mention violate the constitutional separation of powers.

Unless, of course, the executive order is merely a 2016 election year stunt that will simply repeat what the federal law already states, including its exclusions for occasional private gun sales, all the while pretending that some vast loophole has been closed.

In other words, something to placate Obama’s political base without actually accomplishing anything.

Until we see the Obama executive order, we won’t know. All the American people admittedly have to go on right now is a vague report from Bloomberg News. In the meantime, Congress must remain vigilant against any more executive power grabs by this administration, which is becoming a habit.

Robert Romano is the senior editor of Americans for Limited Government.

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