As early as tomorrow, President Obama is set to roll out a series of new executive actions on guns, and the GOP presidential candidates have already decided they are unconstitutional, even though the details of them are not yet known. Marco Rubio insists they will “undermine our Second Amendment rights.” Jeb Bush opines that Obama’s “first impulse always is to take rights away from law-abiding citizens.” Donald Trump claims they will be an “assault on the Second Amendment,” and adds: “Pretty soon you won’t be able to get guns.”
So opponents of these new executive actions should take them to court.
It might actually be valuable if foes did try to get Obama’s executive actions on guns overturned. Here’s one reason why: The end result could be a Supreme Court ruling on the constitutionality of background checks, a topic upon which the Court has not yet ruled. And that could be “clarifying,” in the words of one expert I spoke with today, for purposes of a debate that may well continue for years.
The most contentious of Obama’s executive actions is likely to be his effort to subject more gun sales to federal background checks than are currently covered by them. Other expected actions include requiring federally licensed firearms dealers to report lost or stolen guns.
Currently, federal law requires those who are “engaged in the business” of dealing in firearms to get a license. This is defined as a person who deals in guns regularly, “with the principal objective of livelihood and profit,” but excludes those who make “occasional” sales or sell their personal firearms collections. Federally licensed sellers are required to conduct background checks on sales. Private sellers are not — hence the “private seller loophole,” which Democrats tried to close in 2013 but were blocked from doing so by a Republican filibuster.
According to gun reform advocates, the phrase “engaged in the business” is still too vaguely defined, and allows some people who are plainly selling guns as a business to conduct sales without background checks, allowing them to get into the hands of prohibited buyers, though it remains unclear how widespread this is. Obama’s executive action will try to define the phrase more precisely and more broadly, to prevent that from happening. We don’t know how the administration will draft this definition, and administration officials themselves had previously worried that it is hard to do this without sweeping in people who aren’t really selling regularly. So we need to see the details.
But right now, we can still game out what might happen if this were challenged in court. A legal challenge would likely argue that the administration is overstepping its authority and flouting the will of Congress by interpreting the statute more broadly than it was intended. “The challengers will likely say that the administration’s interpretation is inconsistent with the statutory text and that Congress never meant to delegate to it the authority to regulate anything other than an established storefront business,” Nicholas Bagley, an expert in administrative law at the University of Michigan, tells me.
But it’s also possible that the new executive action could be challenged by a gun buyer — perhaps backed by gun rights groups — who will argue that, by requiring him to undergo a background check before obtaining a gun from a private seller, it infringes on the buyer’s Second Amendment rights.
The Supreme Court has not ruled on the constitutionality of federal background checks, which were established by the Brady law. The Court did rule that an interim Brady measure — which required state officials to conduct the checks while the national system was being set up — was unconstitutional. But it didn’t rule on the underlying constitutionality of the federal government conducting them.
Since then, in its Heller decision, the Court upheld an individual gun right for purposes such as self defense. But it also allowed that this should not cast doubt on efforts to impose “conditions and qualifications on the commercial sale of guns.” It’s not inconceivable that a legal challenge to Obama’s executive action could eventually lead the Court to clarify whether this includes federal background checks, which it probably would do.
“It would be clarifying,” Adam Winkler, a professor of Constitutional law at the University of California and author of a book about America’s battle over guns, tells me. “The court has been remiss in failing to clarify the scope of the Second Amendment. This could provide another opportunity for the Court to make clear what the Second Amendment means and what sort of gun control laws it allows.”
To be sure, the odds are against this getting as high as the Supreme Court. What’s more, plenty of people on both sides of the gun rights argument already assume that federal background checks — and state background check laws — are indeed Constitutional. But, given that some politicians are so quick to denounce proposals such as expanded background checks as unconstitutional, having the Court weigh in affirmatively on this question might be helpful (even if it wouldn’t stop those politicians from repeating the charge that they shred the Second Amendment). And if Hillary Clinton is elected president, there will probably be another push for expanded background checks via legislation. So this debate isn’t going away.