President Obama’s renewed push for executive action on gun control is almost certain to be challenged in court, experts say, setting up another high-stakes battle over the Second Amendment.
Frustrated after a spate of mass shootings, Obama is considering a regulatory change that would extend background check requirements to more gun dealers, the White House said Friday.
The latest proposal, if adopted, would build upon the 23 executive actions on guns that the president issued after the 2012 massacre at an elementary school in Newtown, Conn.
Under current law, private sellers who make “occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby” are exempted from the requirement to obtain a license and conduct background checks.
The stronger requirements apply only to gun dealers who are “engaged in the business” of selling firearms.
The federal government loosely enforces the definition of a gun dealer who is “engaged in the business," allowing many private sellers to sell dozens of weapons at gun shows and online without conducting background checks.
The ambiguity gives Obama wiggle room to tighten the standards without Congress, experts say.
But whether the gambit succeeds would likely come down to what the administration determines to be a “significant number” of guns, and whether the courts agree.
“What counts as a ‘significant number of guns?’” asked Adam Winkler, a constitutional law professor at the University of California, Los Angeles and author of Gunfight: The Battle Over the Right to Bear Arms in America.
"Is it one? Two? Ten? Twenty? Where the administration draws the line could impact whether the interpretation is upheld.”
Supporters of gun rights are up in arms over the possibility of executive action, calling it politically motivated.
“They want to appease their base of gun control advocates,” said National Rifle Association spokeswoman Jennifer Baker. “They hate guns. They know they can’t get rid of the Second Amendment, so they want to make it as difficult as possible for law-abiding citizens to exercise their constitutional rights."
The Gun Owners of America is already threatening to challenge the order in court if Obama moves ahead.
But some legal experts think Obama would have the upper hand. They believe the courts will give the president a long leash to expand background checks as he sees fit.
“President Obama is not in any danger of the court overturning this,” said Brad Bannon, a Democratic strategist and political science professor at Suffolk University. “This is something where the courts are very likely to say, ‘Yeah, you’re the chief executive. Knock yourself out.’ ”
What Obama cannot do is use the power of the presidency to require background checks for all firearm sales.
“If he issues an executive order to eliminate the background check loophole, that would get laughed out of federal court,” Bannon said.
The Obama administration considered the regulatory change on background checks in 2012 but opted against it, according to The Washington Post.
At that time, administration officials considered setting a limit of 50 guns per year, with any person selling more than that required to obtain a license and conduct background checks.
“It’s hard to believe anyone who sells 50 firearms in a year is only selling their personal firearms and not 'engaged in the business,’ ” Winkler said.
Two years later, Obama and Democrats think they have the political momentum, and have launched a new push on gun-control that is becoming a focal point of the 2016 race.
Obama should “go for the gold,” Bannon suggested, and set the limit as low as 25 guns per year.
But even if Obama’s executive order held up in court, it could create enforcement headaches down the line.
“The real question is where is the Obama administration going to get the money to enforce the new rule,” Winkler said.
“The Bureau of Alcohol, Tobacco, Firearms and Explosives is already stretched so thin that I can’t imagine a lot of money going into this.”