Instant Analysis of “Executive Actions to Reduce Gun Violence and Make Our Communities Safer”

January 4th, 2016

Tonight the White House released a “Fact Sheet” discussing the executive actions the executive branch will take with respect to gun control. Not even President Obama has figured out how give a “Fact Sheet” the force of law–he’s trying, I’m sure–so the only important aspects of the lengthy document are whether an agency is proposing a rule, whether a rule is being finalized, or whether the President issued a directive to an agency. Everything else, as they say, is hortatory fluff. (Update: Thanks to Sean Marotta, who found that many of the finalized rules were proposed some time ago).

First, ATF is “finalizing a rule” to expand the scope of people who are required to run background checks prior to selling guns.

ATF is finalizing a rule 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.

The President did not set a specific number of sales that triggers the rule, as many feared. (Update: Sean found the proposed rule was put out in 2013).

Second, ATF is “finalizing a rule” concerning lost or stolen firearms:

ATF is finalizing a rule to ensure that dealers who ship firearms notify law enforcement if their guns are lost or stolen in transit.

(Update: Sean found the proposed rule was put out in 2014).

Third, the Social Security Administration “has indicated that it will begin the rulemaking process” to prohibit people with certain mental illnesses–that render them unable to manage their own finances–from owning guns. (Note that they will go through the rulemaking process for this one, as it includes certain due process rights for those denied the right).

The Social Security Administration has indicated that it will begin the rulemaking process to include information in the background check system about beneficiaries who are prohibited from possessing a firearm for mental health reasons.

Fourth, HHS is “finalizing a rule” to make it easier for states to report information about people who are prohibited from owning a gun for mental health reasons.

The Department of Health and Human Services is finalizing a rule to remove unnecessary legal barriers preventing States from reporting relevant information about people prohibited from possessing a gun for specific mental health reasons. … Today, the Department of Health and Human Services issued a final rule expressly permitting certain HIPAA covered entities to provide to the NICS limited demographic and other necessary information about these individuals

Fifth, ATF is “finalizing a rule” that makes it impossible for people to bypass the background check process by using a gun trust.

ATF is finalizing a rule that makes clear that people will no longer be able to avoid background checks by buying NFA guns and other items through a trust or corporation.

This measure, I’m sure, will hinder hardened criminals who hire attorneys to set up gun trusts prior to buying a gun. I know lawyers in blue states who have made an entire practice about building these trusts.

Sixth, ATF “issued a final rule” concerning lost or stolen guns.

Today, ATF issued a final rule clarifying that the licensee shipping a gun is responsible for notifying law enforcement upon discovery that it was lost or stolen in transit.

Seventh, there is a “presidential memorandum” that urges the agencies to investigate smart gun technologies, such as microstamping and fingerprint scanners.

Issue a Presidential Memorandum directing the Department of Defense, Department of Justice, and Department of Homeland Security to take two important steps to promote smart gun technology. …

The Presidential Memorandum also directs the departments to review the availability of smart gun technology on a regular basis, and to explore potential ways to further its use and development to more broadly improve gun safety. …

Millions of dollars have already been invested to support research into concepts that range from fingerprint scanners to radio-frequency identification to microstamping technology.

At first blush this is extremely underwhelming. I’m sure some gun control advocates are livid. But there is more here than meets the eye. My sense is that the President is setting the stage for future legislation actions. Think about what the actions as a whole accomplish. The President is building the framework for a national registry of people who are not fit to own firearms due to “mental health” concerns. By streamlining the process by which states can report this information–through waiver of HIPAA requirements–the President is signaling to blue states that they can tackle gun control at the local level, and this can ultimately be used nationally. Bloomberg and those funding this mission are no fools. Once such a database is built and tested, it will be so easy for a President Clinton to fold that into the instant background check. Additionally, deeming millions of people who are unable to manage their own finances incompetent to own guns is a significant stigmatization of the right to keep and bear arms. This could ultimately be expanded to other forms of state and federal welfare. This mission creep would be particularly insidious. Finally, funding research into the microstamping and finger-print-scanner guns will provide the basis for a future Congress to mandate these technologies for personal use. I don’t believe for a second that the DOD will require service revolvers to be finger-print activated. A similar research-now-legislate-later approach was used in New Jersey.

These regulations will be challenged in court, as Obama knew they would. But it doesn’t matter. This is simply laying the groundwork for future action when a Congress, more to his liking, is able to act. This is a long-game approach to gun control.