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 arepermitted 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 toldABC 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. Itfailed 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.”
