Are Obama’s New Actions on Gun Sales ‘Legally Meaningless’?

Many Midsouth Shooter Supply customers have asked us what the likely effects of President Obama’s recently announced executive actions will be, and because we’re not lawyers, we’ve been reluctant to forecast the outcomes of the president’s initiatives and tearful press conference. However, one lawyer, Case Western University School of Law Professor Jonathan H. Adler, wrote on the Washington Post’s The Volokh Conspiracy Opinion blog Jan. 5 that President Obama’s recently announced executive actions will likely have no effect on gun laws.

In Adler’s post, “New ATF guidance on gun sales is legally meaningless (or else it would be unlawful),” the professor lays out the legal reasoning why gun owners needn’t get too exercised about Obama’s “series of executive branch actions (not executive orders) that are supposed to reduce the threat of gun violence.”

Adler writes, “Taken at face value, the new ATF guidance [contained in the White House’s action list] is thus nothing more than a restatement of existing legal requirements. Put another way, it merely identifies those who are already subject to the relevant federal requirements and does not in any way expand the universe of those gun sellers who are required to obtain a license and perform background checks. In other words, it is — as the document says — a guidance, and not a substantive rule. It has no legal effect.”

The BATFE publishes a booklet to help you understand when a Federal Firearms License is required under federal law.
The BATFE publishes a booklet to help you understand when a Federal Firearms License is required under federal law.

Adler asks rhetorically, “If the ATF guidelines are nothing more than a guidance — an indication of the sorts of things that might trigger a federal investigation or prosecution, but not a tightening of the relevant legal standard — why would the administration do this?” He posits four potential reasons:

1: “… guidance documents are often useful insofar as they explicate relevant legal standards and (as the name implies) provide guidance to the regulated community. Such documents can help people know when they are subject to specific legal requirements.”

2: “… the administration hopes to “chill” marginal gun sales.”

3: “… to respond to the political demand for action.”

4: “… issuing a guidance is relatively quick and easy.”

In the event ATF gets challenged in court about any actions it might take as a result of the administration’s executive actions, Adler writes, “The first question a court will consider is whether the ATF document is, in fact, a guidance. The administration will argue that it is, as this is the best way to make a legal challenge go away. But in arguing that the ‘guidance’ is a guidance, the administration will also be conceding that the document has no legal effect and that it does not require anything that is not already required under federal law.”

Click here to see BATFE’s existing brochure, “Do I need a license to buy and sell firearms?”, available as a downloadable PDF.

What concerns you about the proposed Obama gun actions?  That you’ll be declared to be “in the business” because you sell a gun to a friend?  Tell us your worries in the comments section below.

32 thoughts on “Are Obama’s New Actions on Gun Sales ‘Legally Meaningless’?”

    1. Not true. Private sales are permitted in NYS. But, an FFL dealer has to run a background check on the buyer, and that can cost him another 25-30 bucks. If he’s looking for a bargain that can be a deal-killer. I think that, since the state government has imposed the requirement, it should foot the bill.

  1. Will anything be changing that may alter the legality of a face to face transaction in my state of South Dakota?

    Second will anything be changing and how I conduct business, purchasing a fire arm online where I currently use A FFL agent to complete the transaction or finishing the transfer?

    1. Darwin,
      No to question one. However as always, you will need to get an FFL if you are planning on making part time or a full time career our of selling firearms.

      No to question two.

  2. Isn’t part of this mess I can’t build a gun with out finger print card, photo sent to the local CLEO and removing the use of gun trust’s?

    1. There is no such requirement for GCA firearms. However, firearms regulated under the National Firearms Act, currently require this of an individual applying to register/make or transfer such a firearm. Gun trusts aren’t going away either, ATF 41F is going to apply the same standard to individuals, as well as fictious entities and do away with the chief law enforcement certification for both.

    2. Nothing legal changed. You can build all the firearms you want as a citizen of the USA. You cannot build them and sell them as that would make you a manufacture. No one said you could not give them away however.

  3. When I die, what will become of my gun collection? How will it transfer to my next of kin if some arbitrary number defines my estate as an arms dealer?

    1. It does nothing, as ATF views these type of transfers as involuntary. There is specific guidance when it comes to estate transfers and probate decisions.

    2. pnoldguy,

      Read the down load from the ATF. It specifically addresses this issue.

  4. If any of the POTUS proposals are published in the Federal Register then they are Executive Orders which do have legal binding. If they aren’t then they are actions directed to federal agencies as policy.

    The only proposal I see that could happen as a executive order is the proposal to redefine who a dealer is since the POTUS has suggested anyone transferring over 2 firearms is a dealer.

    To make that legally binding the BATFE would have to draft a proposed “rule” in the Federal register, gather public comments, and may issue a “interim rule” if the process to develop a “final” rule is dragged out in time.

  5. I’m not worried about Barry Hussein’s little hissy fit at all. He’s just bitchin’ and whinin’ because he can’t get anything past the ever watchful gun owners of America. What I plan to do, and what I urge everyone who reads this to do, is this. Take one of the guns from your collection, list it for sale on Armslist or one of the other online gun selling sites, and when it sells, take the money and purchase another gun from a private online seller. That way, you get to sh*t on “president” Barry’s head twice! Come on, everybody, let’s exercise our rights! Wouldn’t it be great if the result of Hussein’s little stunt was the doubling of online private firearms sales?!?! Sell, and buy, a gun today! Tell Obama to kiss your happy *ss!

  6. Washington State recently required that virtually any gun transfer must be accompanied by a background check done by an FFL holder. There is some question as to whether this needs to be done if you transfer a gun to a relative. My position and I’m sure that of others is that the guns I want to give to my friends and relatives upon my death have always been their guns and they are just being returned or moe specifically and simply are theirs, not mine and never were mine. Guns sold outside the family will go through the process.

  7. I’m not at all concerned about the Muslim POTUS and his knee jerk bulls*** anti-gun gimmicks which don’t amount to dried owl s***. What bothers me is the press and all the lies they spread about gun related deaths among gangs who they call “children”, give me a break they’re NOT children they’re thugs, drug dealers and scum, I say give ’em more ammo and let them kill each other, it’s for damned sure the liberal judges won’t do anything to prosecute them. All the anti-gun rhetoric and brainwashing of students in our public schools is another politically correct and liberal means of destroying the Second Amendment and God help us if the piano legged dyke called Hillary gets into office because we can’t take much more of this: blame everyone else for his or her mistakes because everyone’s a winner and we need to coddle the poor darlings bull s*** !!!!!

  8. What’s it called, when you take an oath to defend the US Constitution against all enemies, foreign and domestic…then you violate that oath of office to degrade the US Constitution? Isn’t it called TREASON? SEDITION?
    I say ALL politicians who have presented or voted for an unconstitutional bill into law be arrested for treason, put on trial, and when convicted, publicly hung in front of the town hall which they betrayed.
    These closet NAZIS MUST BE STOPPED!!!

  9. I guess my concern is the direction they intend to take on enforcement. if it’s about the money, they will go after those buying and selling lots of guns every year. If it’s about the background checks, they will focus on the local sales and gun show sales in states without background check requirements. In some cases, people purchase lots of guns, and only keep the ones they like, at auctions for example when an auction company in Illinois lists “5 handguns” as a single lot, and you really only want one out of that lot, you have 4 guns you don’t want. if you list them on gunbroker or gunsamerica and ship them to FFL dealers so that the background checks get performed, isn’t that following the spirit of this enforcement? The letter of the law might say you are now a dealer for selling 4 guns you just purchased, but since you also made sure they all got background checks, how have you made the world any less safe? (even if the liberal logic worked and more guns out there made you less safe)
    What about the person who purchased MANY guns legally through dealers, and loses a job? they might want to sell a gun a month to make the mortgage payment or rent payment, so they put them on consignment at a local shop, or to save money, list them themselves on a local board and sell them according to all local laws? are they now a dealer for selling 12 guns per year?
    I think they need to make a few more clarifications. If every gun a person sells from a private collection gets a background check, it’s no longer an ATF issue, it’s an IRS issue, and comes down to collecting money for licenses and taxes on profits.

  10. Obama’s executive action on gun control may be designed to fail. Most experts and even the anti- gun media agrees that none of the recent terrorist events would be prevented by these measures. So after a 6 to 12 months when there is no reduction in terrorist acts, the anti-gun people will have the opportunity to say;” We tried to close the little loop-holes and it didn’t work, now we have to take more drastic measures”

  11. In Delaware it is now illegal to privately sell firearms from one person to another without it going through an FFL holder. Additionally, and more recently, it is now illegal for one hunter to borrow the gun of another hunter (for any reason) without an FFL transaction taking place. !!!!!

  12. Stockpile ammo , lots of it . Stockpile guns .
    I am tired of people saying we will not be able to shoot it all.
    Think . Your children will Not be able to buy it at all .
    They will have yours when you are gone.

  13. All the little details are certainly worth arguing…provided we don’t lose the forest in the trees. The ultimate point is this: laws aimed at ownership are aimed at owners–not crime. Laws aimed at reducing crime are targeted at criminals and the crimes they commit–on the enforcement end of the legal spectrum. Laws restricting ownership and sale only create potential crimes for folk who were law abiding before they were passed. Theoretically, at some point, the law reaches a threshold at which it is illegal to own a gun at all.

  14. It’s high time we hold each and every member of congress accountable for their actions! when they vote to pass unlawful legislation, charge them with treason. if found guilty, HANG THEM on live national television! a clear message needs to be sent to every politician that legislation aimed at destroying or limiting The Constitution will NOT be tolerated. it is NOT their job to manipulate The Constitution to fit their views, it IS their job to UPHOLD it! our Constitutional rights will not be violated. and this applies to The President as well. in my opinion, there are already laws on the books that need to be overturned and removed. our government has long punished the normal person for the actions of a few criminals. rather than punish the criminals in such a way to deter future events. when a person picks up a firearm intent on illegal actions, their punishment needs to double. if they take a persons life with a firearm, they should loose theirs. PERIOD. why is it acceptable for an innocent person to loose their life to a criminal, but it is not alright for the criminal to be put to death? when will we quit rewarding them by coddling them after the fact? where is the logic behind that?

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