By Roger J. Katz, Attoney at Law and Stephen L. D'Andrilli
New York, NY -(Ammoland.com)- 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 pontification 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” which you may access here: https://www.whitehouse.gov/the-press-office/2016/01/04/fact-sheet-new-executive-actions-reduce-gun-violence-and-make-our.
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 is strongly suggesting that anyone who transfers firearms to another is 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 license.
But Obama is wrong.
Still, we don’t need an executive directive to prevent a private person, who is not a gun dealer from transferring a gun in interstate commerce 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.” If I wish to sell a gun over the internet, and I am not a licensed dealer in firearms, I cannot lawfully do so. 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. Now gun shows, too, do not present a problem. Most sellers of firearms at gun shows are licensed dealers in firearms and, so, must, under law, perform a background check on anyone whom the dealer is transferring the gun to.
Now, if I am not a licensed dealer in firearms, 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.
Obama wants to extend the scope of federal law beyond that which Congress has authorized. He cannot do this legally. Moreover, there is no need for further federal law. There are no loopholes.
Obama is wrong because he fails to appreciate what federal statutory law and federal case law have to say about how pervasive and effective federal gun laws are – if only they are enforced. But, 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 prescribes 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, 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. So, what is it that he purports to do through executive action?
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, 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. And other federal law, 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 that there are loopholes in the law – for there aren’t any – and, otherwise, inscrutable.
What President Obama is attempting to do, surreptitiously, through his executive directives, is destroy the very concept of a “private sale” of a firearm.
And he does this by attempting, unlawfully, through executive action, to convert the seller – namely anyone who wishes to sell a firearm to another person – into a person who is in the business of selling firearms and who must therefore obtain a federal license to sell firearms. These licenses are expensive; they involve a time-consuming process, administered by the BATF; and are not easy to obtain – 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 who is clearly not in the business of selling firearms. And, these executive directives are not necessary.
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, who wish to transfer firearms to other law-abiding Americans, in an 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.
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