Barack Obama may turn out to be the best President for Second Amendment rights we’ve ever had.
I say this not because Obama has any interest in preserving Second Amendment rights. After all, he announced over the weekend that he’ll be purusing several options for an executive order curbing gun rights, from forcing a small number of online and gun show retailers to conduct background checks on buyers to increasing reporting requirements for Federal gun sellers. Aside from being concieved in the wake of several recent mass shootings, the twin strategies would do little to stop gun violence. But we’d hardly be the first outlet to try to puncture Obama’s shiny thought bubble, so there’s no use in explaining that the gun show loophole covers so few sellers it would make so significant impact on sales at any actual gun show, or that the “reporting requirement” that, ostensibly, failed allowing the San Bernardino terrorists to purchase semi-automatic weapons in a state that banned them, belonged to the Department of Homeland Security.
But no mind, whatever EO results from this sudden and desperate brainchild will result in immediate litigation. And given the makeup of the Supreme Court, such a challenge doesn’t look promising for the lame duck President.
Obama, who has been thwarted by the Republican-controlled Congress in his push for tighter gun control legislation, could act through an executive order, which would be immediate and carry the force of law. It would also almost certainly prompt lawsuits by gun advocates claiming the president lacks the authority to change the legal definition of who must obtain a dealer’s license.
The conservative advocacy group Freedom Watch plans to sue to block any executive order on gun control, Larry Klayman, the group’s general counsel, told Reuters on Sunday.
An executive order would draw immediate comparisons to Obama’s initiative aimed at protecting five million undocumented immigrants from deportation. Challengers sued and won an injunction that blocked the move. The administration has asked the U.S. Supreme Court to take up that case.
The “Executive Order” method here is the most likely to be unconstitutional, given that the President is specifically not given the right to legislate. Obama could, of course, indicate that, say, the ATF would have a larger role in granting licenses to gun dealers, or that they might be stricter in doling those licenses out, but it’s problematic to impose an ex post facto licensing requirement on people who have already been through the regulatory gauntlet.
As for whether gun show sellers will now have to apply for licenses and conduct background checks? Well, they mostly already do. Gun shows, like a lot of conventions, have become large-scale retail outlets in recent years, populated by booths from stores rather than the flimsy card tables stuffed to capacity with aging weaponry the Obama Administration pictures. Licesned gun retailers must perform background checks and keep records. And although Obama maintains that 40% of gun sales are of a private nature, a full 75% of those sales are between friends and family members – people who aren’t bound by the restrictions placed on gun retailers. According to a Justice Deparment survey cited by the link above, only 0.7% of Federal inmates serving time for a gun charge got their weapon at a gun show – and if they were first-time offenders, an FBI background check wouldn’t have picked up on their criminal tendencies.
So, maybe 1% of gun sales would become marginally harder, even if the EO passes with legislative and judicial approval. But what else could happen? By taking this legal risk, the Obama Administration is opening the door to a further redefinition of Second Amendment rights, something the current Supreme Court has been strong and reliable on. By giving gun rights groups, gun owners and friendly Justices the opportunity to litgate on the subject, the Obama Administration is taking a legal risk.
It might be wishful thinking, but it’s entirely possible this entire plan could backfire.