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

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.

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.