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Sorting Out Obama’s Gun Proposal

Politicians have offered confusing and conflicting information on guns in the wake of the San Bernardino shootings and President Obama’s announced plans for tighter gun controls:

  • Jeb Bush said Obama’s plan would take away the rights of someone “selling a gun out of their collection, a one-off gun” by requiring that person to perform background checks. That’s not correct. Such “one-off” private gun sales would be unaffected by Obama’s proposals.
  • In an ad, Marco Rubio says Obama’s plan is to “take away our guns.” The president’s plan would do no such thing. No guns would be confiscated under Obama’s plan, and no law-abiding citizen would be denied the ability to purchase a gun.
  • In an interview, Donald Trump said Hillary Clinton’s gun plan is “worse than Obama[‘s]” and that “she wants to take everyone’s gun away.” That’s not what Clinton is proposing either.
  • Obama said that “historically, the NRA was in favor of background checks.” That’s misleading. The NRA opposed the Brady bill and offered an alternative background check provision that gun-control advocates saw as an attempt to kill the bill.

Obama’s Proposal

In an emotion-filled speech on Jan. 5, President Obama announced a series of executive actions aimed at reducing gun violence. The most controversial was Obama’s plan to crack down on some unregulated Internet gun sales.

The plan does not include any new regulations, or an executive order. Rather, Obama has directed the Bureau of Alcohol, Tobacco, Firearms and Explosives to “clarify” that anyone “engaged in the business” of selling firearms — even if the seller operates over the Internet or at gun shows — must get a license and conduct background checks.

In other words, Obama said, “It’s not where you do it, but what you do.”

And, Obama warned, those who “engage in the business” of selling firearms via the Internet or at gun shows but do not obtain a license and subject buyers to background checks will be federally prosecuted. A person who “willfully engages in the business of dealing in firearms without the required license is subject to criminal prosecution and can be sentenced up to five years in prison and fined up to $250,000,” the White House warned.

To back that up, Obama also announced that ATF has established an Internet Investigations Center that will track illegal online firearms trafficking, and Obama vowed that his 2017 budget proposal would include funding for an additional 200 ATF agents and investigators.

Obama’s plan also includes the hiring of 230 additional FBI staff members to help to more efficiently and effectively perform background checks, and $500 million to improve mental health services.

There has been some confusion about his proposals. For example, a number of our readers asked us to fact-check Obama’s claim that “some gun sellers have been operating under a different set of rules. A violent felon can buy the exact same weapon over the Internet with no background check, no questions asked.”

Many of those readers correctly noted that federally licensed firearms dealers — no matter where they operate, including the Internet — are already required to perform background checks on the gun purchaser. And, besides, it’s illegal for a felon to purchase a gun, period.

But that doesn’t mean Obama’s statement is wrong. Obama did not say violent felons are permitted to purchase guns over the Internet, only that some “can.” Obama was referring to those who buy guns from sellers who purport to be “private” sellers, not licensed dealers, and therefore are not required to perform background checks.

According to current law, those “engaged in the business” of firearms dealing are required to be federally licensed, and must then subject buyers to background checks. But the law exempts any 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.”

In moving to crackdown on Internet sales, Obama is acting on the belief that too many sellers engaged in the business of selling firearms are purporting to be private sellers in order to avoid the need to be licensed (and in turn be required to obtain background checks).

That’s why, in an op-ed published by the New York Times on Jan. 8, Obama said the gun control steps he announced earlier in the week “include making sure that anybody engaged in the business of selling firearms conducts background checks.”

The key phrase in that statement is “making sure.”

Although Obama did not set a threshold number of sales to define who should be a licensed dealer, the White House noted that the “quantity and frequency of sales are relevant indicators.” The administration noted that “even a few transactions, when combined with other evidence, can be sufficient to establish that a person is ‘engaged in the business.’ For example, courts have upheld convictions for dealing without a license when as few as two firearms were sold or when only one or two transactions took place, when other factors also were present.” An Associated Press story said those other factors include business indicators such as “selling weapons in their original packaging and for a profit.”

Some have cautioned that Obama’s actions will have little real effect on gun violence. Carlisle Moody, an economics professor at William & Mary, told us Obama’s proposals “will almost certainly have no effect on violent crime” because licensed firearms dealers who do business over the Internet already do background checks. The guns are mailed to a local licensed dealer who performs the background check.

Existing law also requires that Internet sales between individuals in different states include background checks because guns cannot be legally mailed across state lines, per the Gun Control Act of 1968. In those cases, the gun is again mailed to a local licensed dealer.

The only possibility of avoiding background checks via the Internet is for the two individuals to meet in person, Moody said. “This is a tiny subset of all gun sales. The number of face-to-face gun sales between individuals in which the purchaser is a violent felon who then uses the firearm in the commission of a crime is even smaller.”

In addition, eight states — California, Colorado, Connecticut, Delaware, New York, Oregon, Rhode Island, Washington state — and Washington, D.C. — require background checks for all gun sales, even face-to-face private sales. Two other states — Maryland and Pennsylvania — have similar requirements for the purchase of handguns only.

We should also note that it is illegal for a seller, private or licensed, to knowingly sell a firearm to someone who is prohibited from owning a gun, such as a convicted violent felon. But the seller would have to know. And as we said, in legitimate private sales, background checks are not required.

Bush: Obama’s Actions Would ‘Burden’ Private Sellers

Reacting to Obama’s announced gun actions, Republican presidential candidate Jeb Bush told ABC News that Obama’s plan would place an unnecessary burden on private sellers. But legitimate private sellers would not be required to do anything new.

“If someone is selling a gun out of their collection, a one-off gun, they’re not a dealer, which would require a license and already requires that, you’re taking that person’s right away,” Bush said. “It doesn’t make sense to add burdens on people where the problem isn’t — you’re not solving whatever problem he’s trying to solve.”

While Obama had the ATF clarify that a person engaged in the business of selling guns would need a license and to conduct background checks on buyers, regardless of where those sales take place, there is nothing in Obama’s actions that would affect the “one-off” gun seller that Bush describes.

In order to affect the private seller, Congress would have to pass a universal background check law. A bipartisan 2013 amendment offered by Sens. Joe Manchin, a Democrat, and Pat Toomey, a Republican, would have gotten closer to universal checks, though it would have allowed sales to family, friends and neighbors without the need for background checks. It failed in a 54-46 vote.

In his speech on Jan. 5, Obama acknowledged that he could not institute universal background checks through executive order. “I want to be clear,” Obama said. “Congress still needs to act.”

Unless or until Congress passes a universal background check law, the “one-off” sales described by Bush will still be exempt from the need for background checks.

Taking Guns Away?

On the day that Obama made his speech, Republican presidential candidate Marco Rubio released an ad in which he says, “His [Obama’s] plan after the attack in San Bernardino? Take away our guns.”

In a Fox News interview the day after Obama’s speech, Republican front-runner Donald Trump criticized Obama’s plan and mischaracterized Hillary Clinton’s position on gun control, saying, “And you know, the Democrats generally, and Hillary Clinton is, I think worse than Obama on the issue, frankly. She wants to take everyone’s gun away.”

We’ll deal with these two claims together, since they are related.

Let’s start with Obama, who, in the speech outlining his plan, tried to get in front of such attacks.

Obama, Jan. 5: Contrary to claims of some presidential candidates, apparently, before this meeting, this is not a plot to take away everybody’s guns. You pass a background check; you purchase a firearm.

Nothing in Obama’s announced plan seeks to take away anyone’s gun. Nor would the plan prevent a law-abiding citizen from purchasing one.

“I believe in the Second Amendment,” Obama said. “It’s there written on the paper. It guarantees a right to bear arms. No matter how many times people try to twist my words around — I taught constitutional law, I know a little about this. I get it.”

After Obama’s gun speech, Clinton told an Iowa crowd that she was “very proud” of the president’s announced actions. “I was pleased because some of what he’d called for, I’d advocated for a couple months ago in the debates and in the campaign,” Clinton said.

The gun plan outlined by Clinton on her campaign website states that “any person attempting to sell a significant number of guns” over the Internet or at gun shows ought to be licensed and be required to get background checks from buyers. She also advocates “comprehensive federal background check legislation,” such as the Manchin-Toomey amendment. In addition, Clinton said she supports legislation barring the purchase of firearms by domestic abusers in dating relationships or convicted stalkers or by people involuntarily committed to outpatient mental health treatment. Finally, Clinton has called for an assault weapons ban, though she has not said that that would include confiscation of such weapons already owned by citizens.

Some have pointed to favorable comments that Obama and Clinton have made about Australia’s mandatory gun buyback program as evidence that they ultimately want to take away citizens’ guns.
After a mass shooting in Tasmania in 1996, Australia instituted major federal changes to its gun laws, including banning certain semi-automatic, self-loading rifles and shotguns; requiring nationwide registration for gun ownership; and requiring a 28-day waiting period. Permits for gun ownership were only allowed for a “genuine reason,” such as hunting, but specifically not for “personal protection.” The law included a one-year amnesty for prohibited weapons and a buyback program in which the government purchased 640,000 prohibited firearms. After the amnesty, prohibited guns were deemed illegal. So in that sense, the Australian government did take away some guns.
But while Obama and Clinton have referenced Australia’s example, neither has proposed such a sweeping plan.
For example, during a Tumblr Q&A on June 11, 2014, Obama said, “A couple of decades ago, Australia had a mass shooting, similar to Columbine or Newtown. And Australia just said, ‘well, that’s it, we’re not seeing that again.’ And basically imposed very severe, tough gun laws. And they haven’t had a mass shooting since.” There are other examples of such comments in our story “Trump ‘Hears’ Obama Wants to Take Guns.” But in each case, Obama stopped short of endorsing Australia’s model, noting that in the U.S. “[w]e have a different tradition. We have a Second Amendment.”
Clinton went a little further than Obama, saying that a national buyback program like Australia’s “would be worth considering.”
“Now communities have done that in our country, several communities have done gun buyback programs,” Clinton said at a New Hampshire town hall on Oct. 16. “But I think it would be worth considering doing it on the national level if that could be arranged.”
But nothing in her extensive “gun violence prevention” platform proposes any such program.
 The NRA and Background Checks

Pitching his proposal to expand the use of background checks during CNN’s “Guns In America” town hall on Jan. 7, Obama claimed that background checks were once advocated by none other than the National Rifle Association.

Obama, Jan. 7: So why we should resist this [expanding background checks] — keep in mind that, historically, the NRA was in favor of background checks.

That’s misleading. The president is misrepresenting the NRA’s actions during the creation of the National Instant Criminal Background Check System, or NICS.

As we wrote in 2013, when Vice President Joe Biden made a similar claim, the NRA in 1991 was opposed to the Brady Handgun Violence Prevention Act, which included a seven-day waiting period to allow law enforcement to conduct background checks on gun owners. In an essay on the history of the Brady law, Richard Aborn, a former Manhattan assistant district attorney and a board member of Handgun Control Inc., wrote that “the NRA tried a last-ditch effort” to block the Brady bill by working with Sen. Ted Stevens of Alaska on an amendment to create an instant background check system. The bill failed to become law at that time.

The Brady bill didn’t become law until 1993. At the time, the law required a five-day waiting period until an instant background check system could be developed. The NRA unsuccessfully pushed for a sunset provision that would have ended the five-day waiting period after five years, even if the instant check system wasn’t yet developed. Despite that setback, the NRA was successful in inserting language so that background checks applied only to federally licensed firearm dealers. An NRA lobbyist at the time described attempts to expand background checks to all gun sales as “foolish.”

The NRA has been opposed to an expansion of background checks to any private sales ever since.

For a fuller account of the historical context of the NRA’s position on background checks, see our story, “Biden Revises NRA History on Background Checks.”