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 Obama, who has expressed deep frustration about U.S. gun control
regulations after a series of mass shootings at schools and other
places during his presidency, said he will meet U.S. Attorney
General Loretta Lynch on Monday to discuss gun control measures that
do not require congressional approval.
The president said in his weekly radio address on Friday he has
received "too many letters from parents, and teachers, and kids, to
sit around and do nothing" about the issue.
The Washington Post and Politico reported late last week that one of
Obama’s main proposals would require some unlicensed gun dealers to
get licenses and conduct background checks on potential buyers.
Current law exempts smaller dealers who often operate at gun shows
and sell online.
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.
GUIDANCE NOT BINDING
Obama could take the less risky path on guns by directing the Bureau
of Alcohol, Tobacco, Firearms and Explosives (ATF) to redefine its
guidance on who is considered a dealer under federal gun law. This
would be advisory and lack the force of law, which would mean that
prosecutors could not rely on it when pursuing small gun dealers.
“The guidance could be used as evidence that prosecutors made a
reasonable interpretation that a dealer needed a license, but it’s
not binding,” said James Jacobs, law professor at New York
University and author of the 2004 book “Can Gun Control Work?”
“In a way, it’s more like a speech, like the head of the ATF saying
who needs a federal dealer’s license,” he said.
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Obama could choose an even more cautious route and direct the ATF to
begin the formal administrative rulemaking process to change its
regulations for who is considered a firearms dealer under the
existing Gun Control Act. Agency action that includes the chance for
public comment would create an enforceable rule that would likely
pass legal muster, but that process probably would not conclude
before Obama leaves office in January 2017.
Lawmakers could still try to block such ATF rulemaking by denying
the agency funding, particularly funds for enforcing the rule if it
was passed in the face of congressional opposition.
Already some Republican candidates seeking the party’s nomination to
be its presidential candidate in the 2016 election, including
frontrunner Donald Trump, said they would overturn any gun control
measures by Obama if they get into office.
Still, the President should be on firm Second Amendment ground if he
pushes for a widening in the way the current law is applied, legal
experts said.
“There are very few things I’d say with 100 percent certainty about
what the Supreme Court and other courts would do, but I’m 100
percent certain that no court would say requiring more background
checks violates the Second Amendment,” said Stanford University law
professor John Donohue.
The Second Amendment of the U.S. Constitution protects the right of
Americans to keep and bear arms.
Regardless of what steps Obama might take to increase the number of
dealers who must conduct background checks, legal experts said that
he cannot accomplish his desired gun control agenda - like boosting
oversight of gun show sales - through executive action alone.
“This won’t really close the gun-show loophole, it will only narrow
that loophole,” said Adam Winkler, a law professor at UCLA and
author of Gunfight: The Battle Over the Right to Bear Arms in
America. “This is going to marginally increase the number of people
who have to get a license.”
(Reporting by Robert Iafolla; Editing by Martin Howell)
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