An Executive Order to Get … the Good Guys?

posted on May 30, 2023
Biden characature
Illustration: Gary Locke

In March, President Joe Biden (D) released an executive order that managed, in the space of just a few pages, to demonstrate the remarkable cluelessness of his administration on the questions of crime, gun control and his role in determining federal law. Among the entities that are targeted by the document are gun dealers, gun manufacturers and Americans who buy their firearms legally. Not targeted by the order are the criminals who are responsible for the rise in crime. It was predictable and sad in equal measure.

The best thing that can be said of Biden’s order is that it will do nothing at all. The worst thing that can be said is that, once again, Biden is attempting to rewrite the law without the involvement of the United States Congress. In a speech announcing the move, Biden explained that his ultimate aim was “to require background checks for all firearm sales,” but that, in the absence of such a provision, he was settling for an “executive order” that “directs my attorney general to take every lawful action possible to move us as close as we can to universal background checks without new legislation.”

What does this mean in practice? That remains unclear. The relevant part of Biden’s order instructs the DOJ to “clarify the definition of who is engaged in the business of dealing in firearms, and thus required to become Federal firearms licensees (FFLs).” But this definition is already extremely clear in the U.S. Code. Until 2022, the statutory definition of “engaged in the business” was “a person who devotes time, attention and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a 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 collection of firearms.” 

Since 2022, the definition has been precisely the same, save for the replacement of the phrase “with the principal objective of livelihood and profit” with the phrase “to predominantly earn a profit.” Explaining this change, its drafters noted in the statute that the phrase “to predominantly earn a profit” means “that the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.”

So what’s Biden up to here? Under the plain text of the law, he is unable to get either “background checks for all firearm sales” or to move “as close as we can to universal background checks without new legislation.” As the statute makes clear, there is no need for him “to clarify the definition of who is engaged in the business, ” as that was done by Congress. And, even if we were to put all of that aside, any interpretative changes he might covet would do nothing whatsoever to prevent crime. 

The rest of the order is equally baffling. Biden asks the DOJ to “prevent former FFLs whose licenses have been revoked or surrendered from continuing to engage in the business of dealing in firearms.” But that’s already the law. He wants to “publicly release, to the fullest extent permissible by law, inspection reports of FFL dealers cited for violations of the law.” Okay. Why? If anything, wouldn’t that make it clear to criminals which dealers are lax in their enforcement? And he expresses the desire to “support efforts to modernize and make permanent the Undetectable Firearms Act,” which, by his own admission, he cannot do without Congress.

I suspect that the best answer to these questions came straight from Biden’s lips. “The executive order ramps up our efforts to hold the gun industry accountable,” he said while promoting his move. Indeed so. It’s much easier to go after the law-abiding than to lock up the bad guys, so, naturally, Biden has chosen the former course. 



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