Summary of White House Executive Action on Gun Control: Say goodbye to trusts

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This morning, the White House released a fact sheet stating President Obama’s plans to enact new gun control measures via executive order. After being thwarted by the will of the people, Congress, and the Constitution, a lame-duck President takes one last petulant swipe at law abiding gun owners in his final year in office. I personally cannot think of a more fitting legacy. The full fact sheet is available here from the White House.

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The first action item from the fact sheet is: Keeping Guns Out of the Wrong Hands Through Background Checks. This is further clarified in the following paragraphs:

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.

How that affects us: at first glance, it would seem that this is a redundant measure, because people engaged in the business of selling guns are already required to get a license. However, when you read the “clarification” language it’s clear that the intent behind this particular EO is to go after people engaged in private online transactions such as Gunbroker, Armslist, or the many Facebook groups that support such transactions. One does wonder exactly how this is going to be enforced, as many of those transactions already involve an FFL at the destination point, thus satisfying the background check requirement. My opinion: you’ll see this used to effectively shut down things like Facebook gun swap groups.

Next on the list, the EO will shut off the ability to use a trust or an LLC to bypass the Chief Law Enforcement Officer sign-off on NFA items. I won’t really go in to much detail here, because we’ve seen the writing on the wall for a long time on this issue. It’s been coming, despite our best efforts and stalling it once before, and it was only a matter of time before it happened. How that affects us: if you were planning on setting up a trust to buy some cans, do it today. Do it yesterday. I imagine it will also put a dent in the business model of lawyers that would set up trusts for NFA items for a small fee.

Next item: Ensure States are providing records to the background check system, and work cooperatively with jurisdictions to improve reporting.
Honestly, with as onerous as the NFA-kill and going after private transactions are, this one isn’t that bad. It’s a fact that some states are not very good at reporting to NICS. There have been multiple documented incidents of people passing a NICS check who had convictions at the state level that should have bounced them and didn’t; because the state failed to report. NICS is only as good as the data that it gets fed.

Make the background check system more efficient and effective.
Again, nothing really bad in here, and in fact a little bit of good news for FFL holders. If you’ve ever had to call in a NICS check during peak times and sat on hold forever, you know what I’m talking about. This bullet point allows for the FBI to hire another 230 NICS examiners, non-sworn personnel responsible for processing background checks, as well as continue to upgrade the online NICS system.

The EO then shifts from Background Checks to “Making Our Communities Safer from Gun Violence.”
Ensure smart and effective enforcement of our gun laws.
Short version: the Attorney General instructed the US Attorneys to really crack down on firearms related violence. I genuinely feel bad for whatever guy is the first person they arrest for being an “unlicensed dealer” because he sold a couple of Glocks on facebook. This section also notes that the President’s budget for FY2017 includes funding for 200 more ATF agents.

Ensure that dealers notify law enforcement about the theft or loss of their guns.
This is a clarification of who exactly is responsible for reporting a gun lost or stolen if it goes missing in transit, the ATF has decided that the shipping entity is responsible for reporting the theft, as they were the last person/business to have the gun on their books.

Issue a memo directing every U.S. Attorney’s Office to renew domestic violence outreach efforts.
This one is weird, and because I can’t see the wires it makes me wonder what it’s really about. All that this does is have the AG issue a memo to the US Attorneys nationwide instructing them to engage with local agencies on the subject of domestic violence.

The final subheading is perhaps the most vague: Increase Mental Health Treatment and Reporting to the Background Check System.

In this section we see the White House’s plan to shut off access to firearms to people who have been deemed unable to take care of themselves, or are a danger to themselves. This creates a genuine slippery slope as previously a person had to be adjudicated mentally incompetent to be denied access to guns. Under the new EO, which lacks specific guidelines, a person could be stripped of their 2nd Amendment rights for something as simple as seeking treatment for suicidal thoughts, because an overzealous doctor believed them to be a “danger to themselves.”

Here is the most troubling section:

Include information from the Social Security Administration in the background check system about beneficiaries who are prohibited from possessing a firearm. Current law prohibits individuals from buying a gun if, because of a mental health issue, they are either a danger to themselves or others or are unable to manage their own affairs. The Social Security Administration (SSA) has indicated that it will begin the rulemaking process to ensure that appropriate information in its records is reported to NICS. The reporting that SSA, in consultation with the Department of Justice, is expected to require will cover appropriate records of the approximately 75,000 people each year who have a documented mental health issue, receive disability benefits, and are unable to manage those benefits because of their mental impairment, or who have been found by a state or federal court to be legally incompetent. The rulemaking will also provide a mechanism for people to seek relief from the federal prohibition on possessing a firearm for reasons related to mental health.

To summarize, the White House plans to mine Social Security records to deprive approximately 75,000 people of their 2nd Amendment rights without due process of law. The problem is that while there will obviously be some legitimate denials on that list, invariably it will also include good, law abiding and mentally able citizens who should not have their guns or their rights put in jeopardy.

The final part of the EO covers smart gun technology, which I won’t really touch on here simply because it’s a dead end road. All it does is tell agencies they have 90 days to create a report that shows a roadmap to smart-gun usage, and to “regularly” review smart gun technology to see if it’s viable for LE use. It’s not, and it won’t be for a long time, thankfully.

Summary
For those just looking for some quick bullet points to toss around in a Facebook argument, here is the official Gun Nuts Media Summary of the EO:

  • Goodbye Facebook Gun Sales groups and maybe even Armslist
  • Goodbye to NFA Trusts, because you’ll have to get a CLEO sign-off on those now
  • Say hello to a whole lot more prohibited persons added to an larger and more efficient NICS bounce-list

Those three items, the increased focus on what constitutes an “unlicensed dealer”, the end of NFA trusts, and the expansion of prohibited person reporting are the three items most likely to affect otherwise law-abiding gun owners in negative ways.

We have a few options for relief here: first, Congress can seek to defund these EOs, but that will be difficult since funding is already in place and Congressionally approved for the responsible agencies. Secondly Congress could pass laws that override the EOs, but that’s likely not going to happen. They could also be challenged in the Judicial branch…which probably won’t happen either, because the most likely option for redress is wait until we have a Republican president in 2017 and get them to overrule the previous EOs.

On that note, I bet the Democrat political front-runners are pissed at Obama right now. With the race actually heating up, he’s played directly into the hands of the GOP candidates who can now easily say Democrats are in fact coming for your guns. I bet Hillary is thrilled.

Editor’s Note:According to a statement released by the ATF, the CLEO sign-off requirement is going to be eliminated as well. This means that all background checks for NFA items will be processed by the FBI/ATF when they receive the NFA paperwork.

12 thoughts on “Summary of White House Executive Action on Gun Control: Say goodbye to trusts”

  1. Every other article I’ve read said this removed Cleo signoff and just increased finger printing and paper work for trusts. It appeared that you have to notify but they don’t have to approve

    1. I agree. From what I’ve heard about the final version of 41P (now 41F), the requirement for CLEO signature has been eliminated. Rather the requirement will be to give notice to the CLEO. However, all “responsible persons” will need to have a background check. For trusts, that means all present possessory trustees, but not beneficiaries. This does not appear to be terrible, not good, but not terrible.

  2. If a person seeks help for suicidal thoughts – they are INDEED a danger to themselves. Hence, seeking help so that they can prevent harming themselves.
    This makes perfect sense, and should be seen as a protective measure, not as “stripping” their 2nd amendment rights.

    1. That’s not necessarily true, though. Someone could just be dealing with a bout of depression and go see a shrink for it, the shrink then decides they’re a risk of self-harm and boom next thing you know no gun rights.

  3. These EOs are just a bunch of dem-crat, election year BS to show they’re “doing something”.

  4. CLEO sign-off is gone per the ATF Memo that is linked to by some news articles. The kicker of course is the “final rule may change at publishing” verbiage they put in the initial boilerplate. But, for now, it’s gone per the order.

    https://www.atf.gov/file/100896/download

    SUMMARY: The Department of Justice is amending the regulations of the Bureau of Alcohol,
    Tobacco, Firearms, and Explosives (ATF) regarding the making or transferring of a firearm
    under the National Firearms Act (NFA). This final rule defines the term “responsible person,” as
    used in reference to a trust, partnership, association, company, or corporation; requires
    responsible persons of such trusts or legal entities to complete a specified form and to submit
    photographs and fingerprints when the trust or legal entity files an application to make an NFA
    firearm or is listed as the transferee on an application to transfer an NFA firearm; requires that a
    copy of all applications to make or transfer a firearm, and the specified form for responsible
    persons, as applicable, be forwarded to the chief law enforcement officer (CLEO) of the locality
    in which the applicant/transferee or responsible person is located;

    – and eliminates the requirement for a certification signed by the CLEO. – (emphasis mine)

    These provisions provide a public safety benefit as theyensure that responsible persons undergo background checks. In addition, this final rule adds a new section to ATF’ s regulations to address the possession and transfer of firearms registered toa decedent. The new section clarifies that the executor, administrator, personal representative, orother person authorized under State law to dispose of property in an estate may possess a firearm
    registered to a decedent during the term of probate without such possession being treated as a
    ”transfer” under the NFA. It also specifies that the transfer of the firearm to any beneficiary of
    the estate may be made on a tax-exempt basis.

    This final rule was signed by the Attorney General on January 4, 2016. It is effective 180 days
    after date of publication in the Federal Register. The final rule published in the Federal Register
    may differ slightly from this version as a result of Federal Register formatting.

  5. so the rules on trusts suck for those of us with trusts but those filing as individual have it easier?

    1. There are still advantages to NFA trusts… if you die and the guns are in a trust and the people/family you want to have the guns are part of the trust they have defacto immediate possession… if you own an NFA firearm, or even other non-NRA firearms.. depending upon your state laws… if you die… it will be more hassle to transfer the firearms via the estate, executor, or probate court… hence why trusts are used for homes, etc. too…
      Dann in Ohio

  6. The social security data-mining is greatly concerning… I have personally known two elderly people n the last few years who had guardians appointed to help manage their financial affairs after being “taken” for tens of thousands of dollars by scammers who prey on the elderly’s emotions and naivity, but were more than competent enough to handle and use their firearms in their homes for self-defense…
    Dann in Ohio

    1. If the EO text is converted to rules as written, your elderly friends have nothing to worry about. One would have to be on disability with a mental condition etc. OR be judged incompetent to be reported to the background check list. Unless a court ruled them incompetent in the guardianship papers they don’t fit the criteria. Guardianship =/= incompetence and SSA already has a system in place to differentiate the two.

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