The Constitutionality of President Obama's Proposed Actions on Gun Control

On Tuesday, January 5, President Barack Obama delivered an inspiring address proposing a number of steps that his administration will take to protect Americans from gun violence. Because Congress has refused to enact new legislation -- for example, it failed to enact the Toomey-Manchin background check bill, summarized by Politifact here -- the President announced what his administration will do to improve the enforcement of existing law. Many have attacked the President's proposals on the ground that he lacks the authority under the Constitution to take these steps. I don't see any constitutional difficulties whatsoever with the President's proposals.

What is the President proposing? Basically he is taking action to improve enforcement of existing gun laws.

The most important law that we have to enforce is 18 U.S.C. § 922. This is the law that prohibits anybody from “engaging in the business” of manufacturing, importing, or dealing in firearms, unless that person is a licensed manufacturer, importer, or dealer. The problem is that there are a lot of people who “engage in the business” of dealing in firearms – that is, they repeatedly sell guns to make a profit – who are not licensed. They are getting away with it because they claim that they are making “occasional sales” of guns “for the enhancement of a personal collection or a hobby,” which is specifically allowed under another provision of federal law, 18 U.S.C. § 921(a)(21)(C), which provides: 

The term “engaged in the business” means … as applied to a dealer in firearms, … a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms. 

Well, if you regularly sell a gun in its original packaging that you’ve owned for about five minutes before reshipping it, I’m sorry, but that’s not a “hobby” nor is it a sale from a “personal collection,” and you are breaking the law. The Attorney General is going to issue regulations that will give people guidance about when they have to apply for a license to sell guns. This will go a long way towards closing the so-called “gun show” loophole.

The most important reason that we have to crack down on people who are pretending to be making “private” sales of guns is that only licensed dealers have to conduct background checks on purchasers of firearms. Obviously the people who are circumventing the law by engaging in the business of selling firearms but not obtaining a license are not conducting background checks, and we have to make sure that they do. Background checks are necessary to prevent convicted felons, persons with mental illness who have been adjudicated to be a danger to themselves or others, and persons convicted of certain crimes of domestic violence, from purchasing firearms. But there are a number of other problems that are preventing even licensed firearms dealers from performing background checks.

For example, some people, including criminals, are avoiding background checks by purchasing guns through trusts or corporations. The President announced that the federal government is going to adopt regulations to close this loophole as well.

Another problem is some of the states have laws or policies preventing them from reporting about persons who have been determined to be a danger to themselves or others because of mental illness. The President has ordered the Social Security Administration and the Department of Health and Human Services to issue regulations to address this problem and to work with the states to remove those barriers to accurate and complete reporting.

Other states fail to fully and accurately report convictions for domestic violence. The Attorney General is going to work with the states to meet their responsibility in this area as well.

The federal government will also take steps to require gun dealers to improve reporting of lost or stolen firearms, to close yet another loophole that has allowed criminals to obtain guns.

Yet another problem is that we need more law enforcement personnel to enforce the existing laws. The President is going to assign 200 additional FBI agents to firearms enforcement, and he is requesting Congress for additional funding to hire 250 new ATF agents and investigators.

Finally, one problem that is obviously related to firearms carnage is untreated mental illness. The President announced that he is requesting Congress to appropriate $500 million in additional funding for mental health.

I don't see any constitutional difficulties with what President Obama is proposing. The Constitution gives the President the "executive power" -- that is, the power to execute the law -- and that is all that the President is proposing to do. There have been many instances in American history where the courts have found that Presidents have overstepped their power. For example, in Youngstown Sheet & Tube v. Sawyer (1952) the Supreme Court found that President Truman did not have the power to issue an executive order keeping the steel plants open during the Korean War, because Congress had refused to give the President that type of emergency power. In Boumediene v. Bush (2008) the Supreme Court held that the President did not have the power to hold prisoners in Guantanamo without giving them a fair hearing in accordance with law and existing treaties. And there are serious questions about the constitutionality of President Obama's immigration policies, DACA and DAPA, granting renewable deferrals of actions to deport certain classes of persons who entered or remained in this country illegally. These broad directives may exceed the discretion that the Executive Branch has in enforcing the immigration law. 

But I see no comparable objection to the President's gun control proposals in this case. The President is not proposing that federal agencies should either break the law or refuse to enforce the law. He is merely taking steps to enforce existing law. It is possible that in the future that power may be abused in a particular case, but nothing so far indicates that the administration intends to violate or ignore existing law in a systematic manner.