How durable are Obama's gun reforms?


Earlier this month, President Obama announced that he was taking a series of executive actions to attempt to restrict the sale of guns. The reaction on the presidential campaign trail was predictable. The president was denounced by Sen. Ted CruzRafael (Ted) Edward CruzDNC gathers opposition research on over 20 potential GOP presidential candidates Major corporations, business groups come out against Texas voting law Cornyn is most prolific tweeter in Congress so far in 2021 MORE (R-Texas) as a tyrant who was usurping his constitutional authority. Numerous candidates pledged to reverse all of the measures enacted by the president.


Much of the media coverage of the president's actions (and much of the political response) lumped all of the gun control measures together. But in reality, the president's announcement contained a variety of different policy instruments. Some of these will be easy to reverse by a new president in 2017 who might favor easy access to guns. Others will be a bit more long-lasting. The actions by the president can be divided into four categories.

Regulation: The president announced the finalization of several regulations regarding gun control and the proposal of several others. Many of these regulations had been in the pipeline for a while and should not have been a surprise. Two regulatory initiatives that the president announced were a regulation by the Bureau of Alcohol, Tobacco, and Firearms (ATF) "to require background checks for people trying to buy some of the most dangerous weapons and other items through a trust, corporation, or other legal entity," and one by the Social Security Administration "to include information in the background check system about beneficiaries who are prohibited from possessing a firearm for mental health reasons."

The regulatory actions taken by the president will be the hardest ones for gun advocates to undo. As I wrote in The Hill last month, the options for reversing a regulation are limited for a new president, particularly if they have priorities elsewhere. However, this only applies to the regulations that the Obama administration can make effective before Obama leaves office. Rules that are just being proposed now are unlikely to be completed by the administration and will depend on a friendly president in office in 2017 for their finalization.

Guidance: While regulations fill in the gaps that Congress deliberately leaves in laws, guidance documents often fill in the gaps that federal agencies leave in regulations. Subject to almost none of the procedural protections of the regulatory process, agency use of guidance documents has been a controversial topic. Among Obama's measures were "clarifications" by the ATF as to whom is a gun dealer and therefore must conduct background checks on their customers. Guidance is relatively easy to revoke for a new administration, but may create norms of behavior that won't be so easily reversed.

Enforcement priorities: The oldest accepted role of the executive branch of government is enforcement of the laws. The president relied upon this authority to announce a number of measures that will affect the enforcement of existing gun laws and regulations. He announced both the hiring of new agents at ATF and the FBI and the reallocation of existing enforcement resources toward gun control. Enforcement discretion is largely the realm of the executive branch (although hiring new agents requires congressional funding), and a new president will be able to reverse this easily.

Research: The president included in his announcement a presidential memorandum (different than an executive order) directing the Departments of Justice, Defense and Homeland Security to increase research on the gun safety technology. Like the reallocation of enforcement resources, this can be easily undone by a president who does not consider this research a priority.

As one can see from the above categorization, many of President Obama's actions can be reversed by a Republican president. Obama has had tremendous successes in a wide variety of policy areas, but gun control is not one of them. As such, the announcements last week amount more to an admission of that failure than an exercise in tyranny. To achieve meaningful gun control, congressional action is necessary and Obama knows as well as anyone that this Congress has no intention of legislating in this area.

Shapiro is an associate professor and director of the Public Policy Program at Rutgers University and a member of the Scholars Strategy Network.