Obama’s Executive Fiat on Gun Control

The president announced that the ATF has “clarified” that a person can be “engaged in the business” of being a firearms dealer regardless of the location in which firearms transactions are conducted and even a few transactions can trigger the licensure requirement “when combined with other evidence” sufficient to establish that someone is engaged in that business.

Although it remains to be seen what enforcement actions ATF pursues, this is not really a new development, as several courts have held that it is what you are doing, not where you are doing it, that matters, and federally-licensed firearms dealers have long been required to conduct background checks whether they sell guns in their store or at a gun show.

Courts have also held that other factors, such as holding yourself out as a firearms dealer or engaging in repetitive transactions for profit, ought to be taken into consideration when making such a determination.

Most significantly, nothing in this “clarification” changes the definitions contained in existing law, and any attempt by this (or any) administration to unilaterally re-write those definitions to reclassify individuals who only engage in “occasional sales” as gun dealers subject to licensure requirements would certainly be challenged in court, and would likely fail.

If the president wants to rewrite the law, he must work with Congress to do so.

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