News Does Obama’s Gun Control Plan Lack Ammunition?

President Obama was emotional in sharing his "Commonsense Steps to Keep Guns Out of the Wrong Hands" plan. The State of the Union blog conspicuously proclaimed that the key to curb gun violence is through background checks for firearms sales. But do these words carry any firepower or is the president's executive action mostly shooting blanks?

Background Check Requirements for Firearm Sales

gun-pointing-forward.jpg President Obama opined in his speech that "The problem is 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." Even prior to his address, many seemed to be under the impression that President Obama intended to enforce a sweeping, mandatory registration and criminal background checks for all sales of firearms. But this seems not to be the case with his execution action. The impacted parties are limited to those being "in the business of selling firearms" who "must get a license and conduct background checks."

Who Must Conduct Background Checks for Gun Sales?

What constitutes being "in the business of selling firearms?" Does this somewhat vague definition include those who sell two guns at trade shows over the course of three months? The Bureau of Alcohol, Tobacco, Firearms and Explosives created a guidance document designed to clarify such questions entitled "Do I Need a License to Buy and Sell Firearms?" The guidelines answer the question by defining the term as follows:

…determining whether you are "engaged in the business" of dealing in firearms requires looking at the specific facts and circumstances of your activities. As a general rule, you will need a license if you repetitively buy and sell firearms with the principal motive of making a profit. In contrast, if you only make occasional sales of firearms from your personal collection, you do not need to be licensed.

The guidelines seem to exclude from coverage those who (i) are hobbyists or who don't intend to be in the business of selling firearms; (ii) are not selling with a profit motive; and (iii) do not conduct firearm sales "repetitively." The document attempts to clarify the criteria through the use of examples. To summarize:

  • If your words and actions imply that you intend to sell as part of a business, you'll be considered "in the business of selling firearms." This an includes business cards, accepting credit card payments, an inventory list or any other activity that implies the seller of firearms intends to conduct a business.
  • If you have no profit motive you would not be considered to be "in the business." The guidelines provide several examples that might fit under this section, primarily involving those which include one-time liquidation sales of firearms. For example, someone who inherits a gun collection or has a long time collection that is being sold to fund a child's college tuition. While it's all a gain to the seller and the liquidation may include multiple sales, the goal of the sale was a one-time liquidation, not a profit-making venture that includes repetitive sales.
  • If you don't sell firearms "repetitively" you will be excluded from the law. However, other than excluding a one-time event, it's not entirely clear as to what that word means specifically in its plural form. A precise definition may require an actual prosecution and a court to define and decide. The guidelines themselves imply the same in stating "…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." It provides no specific safe harbor.

Online Sales and Informal Environments Require Registration

The new executive action is clearly designed to focus requirements of registration and background checks upon the classification of the seller and not the medium or place where the firearms are sold. As long as one is considered "in the business of selling firearms" it doesn't matter whether the sale takes place, online, offline or at a flea market. Only the intent of the seller matters and defines whether licensing and background checks are required.

The Future of the Proposed Gun Control Law

Prior stated concerns included a priority on limiting the sale of assault weapons and firearms which included automatic, rapid fire mechanisms. Yet the plan did not mention any ban or limit on high capacity magazines which hold many bullets. Much of the remainder covers various types of funding for enforcement and research. Also notable is the lack of registration requirements for all firearms. These omissions may represent the administration's realization that inclusion would face fierce opposition threatening to undermine the entire action. As a result, a weaker more conservative approach was taken to limit the scope of this initiative. PBS Thirteen presented an interesting question on why President Obama used term "execution action" and not "executive order." At this point the executive order for gun control may raise more questions than it answers.
Legal Practice
Firearms & Weapons
  1. US Federal
About author
Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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