On Jan. 5, President Barack Obama released his plan for executive action on guns to deter illegal unlicensed gun sales, citing a supposed lack of action by Congress as his reason for proceeding.
Note that federal law already requires background checks be conducted by licensed gun dealers. But there is a small exclusion under the law for certain private sales of firearms.
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.”
Those are fairly explicit, narrow exclusions.
And, importantly, the Obama plan does not appear to change those exclusions — at all. All the White House fact sheet detailing the executive action states is “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,” whether the sales occur on the Internet, at gun shows or elsewhere.
Except that’s what the law already says.
These provisions are not ambiguous, despite Obama’s claim he is somehow closing some sort of vast “loophole.”
To be clear, by the text of the statute, if somebody is selling firearms and it is not an occasional sale from a personal collection or as a hobby then the exclusion does not and cannot apply. That person would have to be a licensed dealer and conduct a background check. That’s been the law since 1986. Congress has already acted.
Even if the Obama administration truly believed that the personal collection and hobby exclusions under the law were somehow being exploited by illicit gun traffickers, all federal law enforcement agencies would have to do is bring prosecutions against the alleged offenders.
Because, all the 1986 law really did was create an affirmative defense, and a narrow one at that, so for example, a husband could buy a gun for his wife or a father could buy one for his son-in-law or an heir to an estate can sell an inherited gun collection he or she didn’t want any more without a license — without fear of prosecution.
More importantly, the current provision it is not unenforceable. Yes, federal prosecutors have to prove the sales were not occasional transactions from a personal collection or as a hobby. But despite that supposed hurdle, about 200 prosecutions a year occur for unlicensed gun sales, according to Justice Department statistics.
Those 200 prosecutions are actually a fairly low percentage — a little more than 2 percent — of the approximate 7,500 federal firearms prosecutions that occur every year. The vast majority are actually against felons for illegal gun possession or transfer of firearms.
But the point is, said Americans for Limited Government President Rick Manning in a statement, “There is no loophole that prevents federal law enforcement officials from going after illegal unlicensed gun trafficking, otherwise, there would not be any convictions at all.”
Manning added, “Obama should urge the Department of Justice to aggressively investigate and prosecute real gun trafficking crimes involving real criminals and stop the politicized rhetoric against law-abiding gun owners.”
Manning has a point. After all, what is Obama really saying? That his plan to enforce the law — is to enforce the law? And one that’s been on the books for decades?
If so, that’s fine in and of itself. After all, he is the President. He’s supposed to enforce the law. But if that’s all there is to Obama’s big announcement, why all the fuss?
This is a guest post by Robert Romano senior editor of Americans for Limited Government.