Looks Like an Executive Order on Guns is Coming

[zxcvbob]

So guys routinely selling guns out of their private gun collection would have to run a check on the NICS or be prosecuted.
If this is an indicator, I predict very little will change.

A private party can't run a NICS check.  The effect here is to outlaw all private sales.  That's the first step.  Then they start running FFL's out of business again.

[MechAg94]

The real question is if they would be able to prosecute for violation of an executive order.  There is no law mandating a background check for a person to person sale in the same state.  They would have to know about it and then find a means to prosecute for it.  Not sure what means they would use for that.

What I saw in an article talked about setting a max number of guns a person could sell in a year before they would be considered a dealer.  I guess it would depend on what number they chose.

[MechAg94]

A private party can't run a NICS check.  The effect here is to outlaw all private sales.  That's the first step.  Then they start running FFL's out of business again.

But is the punishment for that prosecutorial harrassment or will they try to actually convict someone for violating an executive order?

[T.O.M.]

The real question is if they would be able to prosecute for violation of an executive order.  There is no law mandating a background check for a person to person sale in the same state.  They would have to know about it and then find a means to prosecute for it.  Not sure what means they would use for that.

What I saw in an article talked about setting a max number of guns a person could sell in a year before they would be considered a dealer.  I guess it would depend on what number they chose.

There are no provisions under federal law or, more importantly, the Constitution,  for an executive order to be put in place which creates a criminal offense.  It would be a blatantly unconstitutional move for him to issue an executive order and then institute criminal prosecutions solely on the basis of violations of that order.  Basic separation of powers issue, which should get any criminal case thrown out at arraignment.

[brimic]

Where is the ACLU on all of this?
>crickets chirping<
Yep. Thought so.

[T.O.M.]

Where is the ACLU on all of this?
>crickets chirping<
Yep. Thought so.

ACLU doesn't consider 2A to be a liberty issue.  Law professor I knew who was a big shot in the ACLU said 2A allowed states to have a National Guard.  Said it was only included among a list of individual rights by accident.   

[brimic]

ACLU doesn't consider 2A to be a liberty issue.  Law professor I knew who was a big shot in the ACLU said 2A allowed states to have a National Guard.  Said it was only included among a list of individual rights by accident.   

I know... I just wanted to place an exclamation point on that subject. When it comes down to it, If the constitution were suspended for gun confiscation, they would be filled with glee.

[zxcvbob]

There are no provisions under federal law or, more importantly, the Constitution,  for an executive order to be put in place which creates a criminal offense.  It would be a blatantly unconstitutional move for him to issue an executive order and then institute criminal prosecutions solely on the basis of violations of that order.  Basic separation of powers issue, which should get any criminal case thrown out at arraignment.

But if the law is already in place (GCA '68), and Congress just leaves it to agencies like BATF to define the rules and regulations and definitions, there's nothing to stop the executive branch from moving the goalposts -- making "in the business of selling" or however it's worded mean you sold more than zero.

[wmenorr67]

Ok, so I didn't sell the firearm.  I gave the guy a gun and he just happened to drop a few hundred dollars out of his pocket before he walked away.

[bedlamite]

It doesn't matter anyway,I lost all my guns in a horrible boating accident.

[Ben]

It doesn't matter anyway,I lost all my guns in a horrible boating accident.

I think a lot of people would do that, but the downside is something we've talked about in the past. What do you do with the theoretical guns you have after the accident? About the only thing they're good for is full on insurrection. You can't go to the range, you might not be able to buy ammo, and if you use them for personal protection, which is 1000 times mire likely than taking up arms against the govt., you survive your encounter, but you go to jail.

Bans work not because they will ever get even 1% of the banned guns turned in, but because they make it impossible, or highly impractical to use the banned gun for anything (unless you live in the middle of the desert in Utah or something).

Side question: Can Obama invoke any Commerce Clause stuff as an EO?

[T.O.M.]

The big thing is this... an executive order cannot create a criminal offense.  Obama cannot suddenly create a new crime by means of such an order.  So, for a completely made up example, let's say he issues an order which bans the civilian possession of an "assault weapon".  Makes it a federal felony offense to be in possession of an AR, M4gery, AK, etc.  Has this enforced by federal LEOs (and state level, who can arrest for federal offenses.  Whether the do so or not is a different issue).  Defense lawyer will move to dismiss on the grounds that POTUS acted ultra vires (I think that's the Latin phrase), meaning he went beyond his Constitutional powers by creating a law, a power which is specifically enumerated to Congress.  Case dismissed, and law ruled unconstitutional.

Now, can he issue an order which changes the meaning of terms in existing laws, like expanding the definition of dealer to include anyone who sells a firearm?  Again, no.  The power to change the laws remains with Congress.

What if the term is vaguem and they interpret the term in a new way?  Now you're in the grey area, where lawyers and courts will debate the legality and constitutionality of the order for years.

If I had to guess, I'd wager on the no-fly list, or maybe restrictions on imports.  But again, it's a pure guess.  The first might get struck down by a court.  The second would probably survive a challenge.

[Ben]

I'm, as a layperson, guessing nothing he does will survive a competent court challenge, including a "no fly list" EO, given the whole "innocent until proven guilty" and "secret list" things. I'd be concerned about the time it takes a challenge to be heard and ruled on though.

Also concerned about how various LE might interpret anything he signs, given the financial and other burdens and hoop jumping will be on innocent gun owners to prove their innocence. For every Sheriff that pledges to ignore new gun regs, there's a city police chief itching to pull the trigger on test case arrests.

[T.O.M.]

I'm, as a layperson, guessing nothing he does will survive a competent court challenge, including a "no fly list" EO, given the whole "innocent until proven guilty" and "secret list" things. I'd be concerned about the time it takes a challenge to be heard and ruled on though.

Also concerned about how various LE might interpret anything he signs, given the financial and other burdens and hoop jumping will be on innocent gun owners to prove their innocence. For every Sheriff that pledges to ignore new gun regs, there's a city police chief itching to pull the trigger on test case arrests.

And this is the rub...is he willing to ignore what most Americans are taught in a civics class (Legislative branch makes laws, Executive branch enforces the laws, Jucical branch interprets the laws) and do whatever the Hell he wants?  If so, he may be sitting on a Hawaiian beach laughing as the courts are still dealing with the mess such an order would make.  If he does so, are there LEOs and judges willing to do the right thing and declare such actions unconstitutional right away?  Federal judges are appointed for life, so they have less fear of retaliation.  Federal LEOs would risk their jobs, but could probably make more money on the book deal afterwards.  These are interesting times...

Edited because I can't type worth a damn on this tablet...)

[pawcatch]

A private party can't run a NICS check.  The effect here is to outlaw all private sales.  That's the first step.  Then they start running FFL's out of business again.

Of course, I know that, that's why some in congress such as Phil Gingrey suggested we let private individuals run background checks. He was run through the Guntlet by some pro-gun groups for merely suggesting that.

I'll tell you what, Manchin-Toomey is starting to look pretty good compared to what we may get now.
This may be Obama's intention all along, to make them pass a more "mild" bill.

[brimic]

Of course, I know that, that's why some in congress such as Phil Gingrey suggested we let private individuals run background checks. He was run through the Guntlet by some pro-gun groups for merely suggesting that.

I'll tell you what, Manchin-Toomey is starting to look pretty good compared to what we may get now.
This may be Obama's intention all along, to make them pass a more "mild" bill.

Excellent analysis, you recognized what is really going on. A lot of 'mild' changes eventually add up to radical change.
http://nord.twu.net/acl/dialectic.html

[Andiron]

I think a lot of people would do that, but the downside is something we've talked about in the past. What do you do with the theoretical guns you have after the accident? About the only thing they're good for is full on insurrection.

Lists work both ways.  

[Ron]

Excellent analysis, you recognized what is really going on. A lot of 'mild' changes eventually add up to radical change.
http://nord.twu.net/acl/dialectic.html

The Hegelian Mambo

Thesis step to the left,
Thesis step to the left,
Grab Antithesis on your right and step to the left,
Twirl around
Synthesize
cha cha cha
And step to the Left…

[MechAg94]

I guess it depends on who you really think will be interested in compromise.  That is a losing proposition especially in an election year.

I am not worried about executive orders.  I doubt he is going to do anything extreme, but whittling away at the edges is likely.  Defining how many sales make a dealer?  Sure.  Making that zero?  I doubt it. 

I just don't think it is constructive to act like the other side's victory is inevitable. 

[RevDisk]

I concur with Chris and MechAg94. While I'm sure some folks think Obama will at the last second declare martial law or fly the Admiralty flag or whatnot, most likely he'll try to EO what he can and indeed push Constitutional boundaries. But not off the wall flat out dictate new law or criminal offenses. Because it wouldn't be enforced.

Unfortunately, there is plenty he can do. Mostly with imports and exports. Maybe have ATF and State slow down all requests to 'allow extra time for screening terrorists' for new FFLs, NFA stuff, etc. Screwing with dealer status, which is largely undefined. But it's annoyance range stuff, not bans or substantial changes. Honestly, I'd be happy if dealer status was actually defined. I haven't heard of the BATFE recently trolling gun shows to bust people making a profit on selling a firearm, but it's always a possibility.

The only far unconstitutional reach I do plausibly see trying is the ban on no fly list and/or terrorism list folks from buying guns. Because a large number of people won't understand that it's a violation of due process as well as a host of other constitutional violations. But honestly, no one is going to smack him hard on it because it's allegedly banning terroristers from getting guns. It won't survive its first court, but that doesn't matter. The good news is maybe we'll get some transparency on both of those lists.

[T.O.M.]

The only far unconstitutional reach I do plausibly see trying is the ban on no fly list and/or terrorism list folks from buying guns. Because a large number of people won't understand that it's a violation of due process as well as a host of other constitutional violations. But honestly, no one is going to smack him hard on it because it's allegedly banning terroristers from getting guns. It won't survive its first court, but that doesn't matter. The good news is maybe we'll get some transparency on both of those lists.

It's funny, I try to talk with people I consider intelligent about the "no fly" list, and they just don't seem to understand that it's a significant due process violation.  If it was run by the airlines, it would be a private business refusing to sell services to people, which is legal (despite the arguments of the whole bakers forced to make wedding cakes for gay weddings issue).  But since it is a government list, you have a Due Process clause issue, as these people are being deprived of a liberty interest without judicial processes.  And, what some people don't seem to appreciate is that it's not a list of known terrorists, it's a list of all suspected terrorists, often without significant identifying information.  My brother in law, who has a very traditional Irish name (like Timothy Murphy), flew to England two years ago, but when he attempted to fly home, he was denied access to the plane, as his name was no the no-fly list.  It took two days and the involvement of an attorney on his behalf to finally make someone see that the name on the list was a 56 year old Irish man linked to the IRA and bomb making, while BIL was a 42 year American who graduated from the University of Michigan and manages a sales team at a business.  I ended up calling some people I know at D.O.J. to find out who I could call at State to simply ask them to look at BIL's passport history and birth date compared to the guy on the list.  Fortunately, his boss was understanding, and the whole affair only cost him a hotel bill and an additional vacation day.  It could have been worse.

[MechAg94]

Trying to apply the no-fly list and such to the NICS check could only be done under the table for a little while.  It would leak out and the lawsuits would no-fly over it.  He could probably get away with it for a little while.  

I think the biggest danger for FFL's is rigging a slow down of the NICS system such that gun shows and such can't sell guns without essentially 3 days waiting periods.  If not deliberately slow, they could lay off half the call people.  That would be harder to identify and harder to sue over.

[T.O.M.]

Trying to apply the no-fly list and such to the NICS check could only be done under the table for a little while.  It would leak out and the lawsuits would no-fly over it.  He could probably get away with it for a little while.  

I think the biggest danger for FFL's is rigging a slow down of the NICS system such that gun shows and such can't sell guns without essentially 3 days waiting periods.  If not deliberately slow, they could lay off half the call people.  That would be harder to identify and harder to sue over.

Honestly, he could pull of the reduction in staff move without an executive order.  Just tell the head of BATFE to reassign people and that's all.  Where he'd have to issue an order is to remove the automatic pass if the NICS results aren't returned in "x" number of days.  Word the order that any/all sales require a completed NICS screen, then sell it to the public by adding the terrorist watch lists to the NICS system.  Tell the public it's not preventing hunters from getting a rifle, or a homeowner from getting that double barrel shotgun for protection.  It will keep terrorists from getting assault weapons.  No one on the terror list will sue for inclusion.  doubtful that any citizen will file a suit because the check is running slow, and even if they did, .gov will argue that they had to reassign personnel to deal with terrorist threats, so fewer people for the massive increase in NICS checks, we're sorry judge.  Judge orders it done, they do it for that case, and go back to business as they were.

Not that I've thought about this...

[makattak]

Honestly, he could pull of the reduction in staff move without an executive order.  Just tell the head of BATFE to reassign people and that's all.  Where he'd have to issue an order is to remove the automatic pass if the NICS results aren't returned in "x" number of days.  Word the order that any/all sales require a completed NICS screen, then sell it to the public by adding the terrorist watch lists to the NICS system.  Tell the public it's not preventing hunters from getting a rifle, or a homeowner from getting that double barrel shotgun for protection.  It will keep terrorists from getting assault weapons.  No one on the terror list will sue for inclusion.  doubtful that any citizen will file a suit because the check is running slow, and even if they did, .gov will argue that they had to reassign personnel to deal with terrorist threats, so fewer people for the massive increase in NICS checks, we're sorry judge.  Judge orders it done, they do it for that case, and go back to business as they were.

Not that I've thought about this...

I'm not completely sure, but I'm fairly certain the automatic pass is legislatively dictated in order to prevent that precise situation.

Ah ha, looks like I am correct:

(b) PERMANENT PROVISION- Section 922 of title 18, United States Code, as amended by subsection (a)(1), is amended by adding at the end the following:
`(t)(1) Beginning on the date that is 30 days after the Attorney General notifies licensees under section 103(d) of the Brady Handgun Violence Prevention Act that the national instant criminal background check system is established, a licensed importer, licensed manufacturer, or licensed dealer shall not transfer a firearm to any other person who is not licensed under this chapter, unless--
`(A) before the completion of the transfer, the licensee contacts the national instant criminal background check system established under section 103 of that Act;
`(B)(i) the system provides the licensee with a unique identification number; or
`(ii) 3 business days (meaning a day on which State offices are open) have elapsed since the licensee contacted the system, and the system has not notified the licensee that the receipt of a firearm by such other person would violate subsection (g) or (n) of this section; and
`(C) the transferor has verified the identity of the transferee by examining a valid identification document (as defined in section 1028(d)(1) of this title) of the transferee containing a photograph of the transferee.

[Scout26]

Ha !!!


You guys think silly things like written law, the words of the Constitution, and case law will stop him.


I present as evidence all the "changes" he's made to Obamacare, despite the actual wording of the law, not to mention all the other shenanigans he's done with recess appointments and others. 

Please.  He has a pen and phone, he feels that he's not constrained be such petty things as laws.