The Gun Law Loophole

On Jan. 5, President Obama announced a series of executive actions to address gun violence in this country. The President’s actions reflect his frustration with Congress, which continually fails to act despite the horrific number of gun murders every day. As Obama announced his series of actions just five days into the new year, the news site Vocativ reported that 147 people had died from gun violence already in 2016.

Given this atmosphere, the president couldn’t wait any longer. Among the executive orders is an overhaul of the federal government’s background check system that will add more than 230 examiners to bolster the effectiveness of the background checks. This action may have real consequences, as many of the last 15 mass shootings were perpetrated by gunmen who never should have passed a background check allowing them to acquire a firearm.According to the New York Times, at least eight of the shooters had criminal histories or documented mental health problems that should have, but did not, prevent them from obtaining their weapons. The president has also instructed the Department of Health and Human Services to remove barriers in the law that currently hinder citizens from reporting individuals with mental health issues, information that would prevent them from purchasing a gun. HHS will also be conducting a series of dialogues on mental health and gun violence. The president helped unroll these reforms alongside Attorney General Loretta Lynch, who will be writing a letter to state governments asking them to update their criminal records, an act that would increase the effectiveness of the background checks.

However, Obama’s most controversial orders involve a legal clarification that will label more entities as “arms dealers,” and therefore require them to get a federal license and conduct background checks on every prospective customer. Currently, under the “gun show loophole,” anyone can purchase a firearm at a gun show without having to undergo a background check. Obama, however, is instructing federal agents to interpret the law differently, mandating that anyone "in the business of selling firearms" get a federal license, including trusts, corporations and those selling at gun shows.

Already, the backlash to the president’s executive actions has begun. John Culberson, a Representative from Texas and chairman of the Appropriations subcommittee that oversees and provides funding to the Justice Department, wrote a letter for Attorney General Lynch announcing his intent to defund the Department if it implements the executive orders."I notified the attorney general,” wrote Culberson, “that if the Department of Justice attempted to create new restrictions on our Constitutional rights that I would use every tool at my disposal to immediately restrict their access to federal funding.”

Culberson and many other conservatives believe that President Obama has overstepped his authority, reinterpreting a law and violating the Second Amendment. So are Obama’s actions constitutional? For the meantime, it appears yes.

Currently, federal code states that anyone "engaged in the business” of selling guns must get a federal license and conduct background checks. The law continues to describe a firearm dealer as someone who "devotes 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,"but not someone "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."

President Obama is instructing federal employees to take a more stringent interpretation of this code. A White House memo on the subject says that "Even a few transactions, when combined with other evidence, can be sufficient to establish that a person is 'engaged in the business.'” Clearly, there is ambiguity here, and the case will inevitably make its way to the D.C. Circuit Court of Appeals for further review.

At this point, however, President Obama is taking advantage of a purposefully vague law, altering the interpretation rather than violating or changing a law outright. When you step back from the legal analysis, you remember that this is a man who has had to give far too many speeches in the aftermath of a mass shooting. President Obama attempted to the gunshow loophole through law in 2013, only to see his efforts blocked by Republicans in the Senate. Now he is using the resources at his disposal to address a failure of the law that should have been remedied years ago. Are his actions constitutional? Probably. Are they the right thing to do? Definitely.