President Joe Biden released a Executive Decree that the White House said Bring federal gun sales regulations as close to universal background checks as possible without additional legislation. The order rests on a legally controversial redefinition of who qualifies as a “dealer” of firearms and therefore must obtain a federal license and comply with related rules, including background checks on customers.
Federal law defines a gun dealer as someone who “deals with the sale of firearms”, which until last year was defined as “devoting[ing] time, attention and labor to dealing in firearms as part of a regular trade or business with the primary objective of subsistence and profit through purchase and the repetitive resale of firearms. Bipartisan Safer Communities Act deleted “with the primary purpose of subsistence and profit” and replaced with “primarily to make a profit”.
As a Congressional Research Service explain, this change was “intended to require individuals who repeatedly buy and resell firearms for profit to hold a federal arms dealer’s license, even if they do not do so with” the main purpose of earning a living. According to the amendment’s proponents, “there was confusion” over whether the definition of “engaged in the business” covered “persons who repeatedly buy and resell firearms for profit, but may not be the main source of their livelihood”. The legal definition still explicitly excludes “a person who makes occasional sales, exchanges or purchases of firearms for the improvement of a personal collection or for a hobby, or who sells all or part of his collection personal firearms.
Biden’s order doesn’t say exactly how he plans to increase the number of people classified as dealers. Instead, it instructs Attorney General Merrick Garland, whose department includes the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), to “clarify the definition of who is engaged in the commerce firearms”. Garland may do so by “making rules, where appropriate and in accordance with applicable law”.
During Biden’s time as vice president, the Obama administration considered a rule that would have covered anyone who sells 50 or more guns a year. “While the White House Legal Counsel’s Office and then Attorney General Eric H. Holder Jr. initially concluded the settlement was legally defensible,” The Washington Post reported in 2015, “some federal attorneys remained concerned that setting an arbitrary numerical threshold could leave the rule vulnerable to challenge.” ATF officials “objected that it would be difficult to enforce and that it was unclear how many sellers would be affected by the change.”
Unfazed by these concerns, Vice President Kamala Harris spear an even bigger idea when she ran against Biden for the 2020 Democratic presidential nomination. Obama – would have been required to obtain a federal license and conduct background checks. This proposal was clearly incompatible with the original version and the amended version of the law.
Whatever rule Garland proposes will seek to accomplish something that Congress has repeatedly refused to do: require background checks for gun sales that are currently considered “private.” This plan is in line with Biden’s other attempts impose gun control by executive decision.
Any “arbitrary numerical threshold” would ignore the clear intent of Congress to leave hobbyists and collectors alone. It would also disregard the requirement that a dealer engage in a “regular course” of “repetitive buying and reselling”, motivated primarily by profit. To survive the inevitable legal challenges, Garland’s regulations will need to take these criteria seriously.
Assuming the Biden administration can produce a rule that passes by law, would it be worth it? There are several reasons to think that expanding the background check requirement wouldn’t yield the public safety benefits that Biden imagines.
As these skeptical ATF officials noted during the Obama administration, a broader definition of arms dealers “would be difficult to apply.” These are, after all, private sales, which are difficult to detect by nature, especially if they concern only a few weapons per year.
THE evidence indicates that state laws requiring background checks for private sales, which in practice means they must be done through federally licensed dealerships, are widely flouted by gun owners who object to the added expense and inconvenience. It seems unrealistic to expect stricter compliance with a requirement than gun owners become federally licensed dealers before they are allowed to dispose of their property.
President said he wants to prevent mass shootings. But mass shooters usually don’t have a disqualifying criminal or psychiatric record, which means they would not be blocked through background checks. Many pass background checks before committing their crimes, while others obtain firearms from relatives. According to a National Institute of Justice report of mass public shootings from 1966 to 2019, only 13% of perpetrators obtained firearms through illegal transactions. Given that these sales were already illegal, it is unlikely that additional restrictions would have made a difference.
Biden also aims to prevent “everyday acts of gun violence.” But ordinary criminals in general get guns from informal sources, such as friends, acquaintances, relatives and the “underground market”, which are unlikely to be affected by new regulations. Unsurprisingly, a study 2019 found that the expansion of background checks in California in 1991 “was not associated with a net change in the rate of firearm homicides over the following 10 years”.
When arms buyers are flagged by background checks, it does not necessarily mean that they pose a threat to public safety. As defined under federal law, “prohibited persons” include millions of Americans with no history of violence, such as cannabis users and other users of illegal drugs, those convicted non-violent crimesand people who have been subjected to involuntary psychiatric treatment but never seen as a threat to others.
Potential gun buyers who fail background checks are seldom prosecuted for illegally attempting to purchase a firearm. “These cases lack ‘jury appeal’ for a variety of reasons,” noted a report 2004 of the Inspector General of the Department of Justice. One such reason: “The factors prohibiting someone from owning a firearm may have been non-violent or committed many years ago.”
When unauthorized sales take place before background checks are completed because the allotted time has expired, the ATF often takes its time to recover these weapons. The Inspector General’s report noted that ATF officers “did not consider most prohibited persons who obtained firearms to be dangerous and therefore did not consider it a priority to quickly retrieve the firearm.” “.
In short, background checks are not a serious obstacle for mass murderers or ordinary thugs and generally flag people who prosecutors and ATF agents do not consider dangerous. Naturally, Biden wants more.
