The new Executive Order will restrict gun sales

The Biden administration just announced a new Executive Order on guns. Like the Obama-era Executive Order on guns, it's mostly fluff. But not entirely. In fact, it will probably succeed in restricting who is allowed to sell guns.

What is the Biden administration doing?

Among other things, Biden's new Executive Order instructs the Attorney General to "develop and implement a plan to ... clarify the definition of who is engaged in the business of dealing in firearms, and thus required to become Federal firearms licensees (FFLs)".

Clarifying wouldn't necessarily be a bad thing. The definition has always been vague, and it recently changed, so it's ripe for clarification. But the Biden administration isn't really hoping to "clarify". It's an anti-gun administration. It openly declares "President Biden will do everything he can" to restrict gun ownership. By its own admission, the Biden administration is expecting this clarification to restrict gun sales:

"This move would mean fewer guns will be sold without background checks".

In other words, more sellers will be required to have a Federal Firearms License, which requires them to perform a background check on the buyer on every sale.

Ironically, this move would also mean more guns will be sold illegally, as people who aren't aware of the new definition continue using the 1968 definition and become accidental felons. Further, this move would mean fewer guns are sold in general, as many people facing the licensing requirement simply won't sell as they'd like.

Who will be required to have a Federal Firearms License?

Federal law says anyone "engaged in the business of selling firearms at wholesale or retail" must have a Federal Firearms License (FFL). However, the definition of "engaged in the business" has always been vague since it was introduced by the Gun Control Act of 1968. Plus, it was changed last year by the Bipartisan Safer Communities Act to become even more vague. The Biden administration is hoping to use that change to the already-vague definition as an opportunity to restrict firearm sales.

As originally written in 1968, the law said (emphasis added):

The term “engaged in the business” means ... a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to 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 personal collection of firearms;

The "principal objective of livelihood" means you didn't need a Federal Firearms License unless you were trying to earn a living from dealing in firearms. That's a high bar. Relatively few people selling guns are trying to earn a living from it.

Last year, the Bipartisan Safer Communities Act changed the language after 54 years. It removed "with the principal objective of livelihood and profit" and replaced it with: “to predominantly earn a profit”. That's a much lower bar. Many people selling guns are engaging in the time-honored practice of buying low and selling high, to earn some extra cash without expecting anything approaching a livelihood. Theoretically, more people are subject to the licensing requirement now.

The new language is not only more restrictive, it is less clear. It is relatively easy to see if someone is trying to earn a livelihood from an occupation, because they'll usually have a registered business, a storefront, marketing, etc. But it's not so easy to see if someone is trying to "predominantly earn a profit" from their sales.

This new ambiguity compounds the previous ambiguity. For example, what are "occasional sales"? As the Obama administration noted, "There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement." Both sellers and law enforcement are largely left in the dark.

Ultimately, the definition of "engaged in the business" relies on circumstantial judgment calls, and only more so since the change last year. It is a ripe target for administrative re-interpretation. At this point, we only know more people will be required to have a Federal Firearms License – we don't yet know how many more.

Will administrative re-interpretation be effective?

The Biden administration has already re-interpreted some gun laws in order to outlaw specific gun products. Specifically, consider pistol braces and unfinished receivers, both of which were confirmed legal for many years until the Biden administration arbitrarily re-defined them as illegal.

Interestingly, the Biden administration was acting on inspiration from the Trump administration, which pioneered the re-interpretation approach when it arbitrarily re-defined bump stocks as illegal.

While all these arbitrary re-interpretations are still being challenged in the courts, and may not hold, they have massively reduced sales of these gun products. We can expect the re-interpretation of the Federal licensing requirement to reduce sales of guns in general. The big difference is, it's more likely to stick.

Unlike other recent re-interpretations, this one will be grounded in an actual change in law, passed by Congress. That gives the Biden administration much stronger legal footing. Basically, their stance will be: "The law changed, so we needed to issue a new interpretation." Legal challenges are much less likely to be successful in the face of that argument, because that's normal behavior for the executive branch. In other words, thanks to Congress, the Biden administration's effort to restrict private firearm sales is likely to stick.

What else does the Executive Order say?

Aside from threatening to restrict who is allowed to sell guns, the Executive Order doesn't say much else that is meaningful. Encouraging the use of red flag laws is probably most concerning, given the inherent risks of abuse and violence they entail. In detail, the Executive Order calls to:

• prevent former FFLs whose licenses have been revoked or surrendered from continuing to engage in the business
• publicly release, to the fullest extent permissible by law, inspection reports of FFL dealers cited for violations of the law
• support efforts to modernize and make permanent the Undetectable Firearms Act
• expand existing Federal campaigns and other efforts to promote safe storage of firearms.
• encourage effective use of extreme risk protection orders (“red flag” laws)
• develop a proposal ... on how the Federal Government can better support the recovery, mental health, and other needs of survivors of gun violence, families of victims and survivors of gun violence, first responders to incidents of gun violence, and communities affected by gun violence.
• evelop and implement principles to further firearm and public safety practices through the Department of Defense’s acquisition of firearms
• ensure that [Federal law enforcement agencies] issue National Integrated Ballistic Information Network (NIBIN) submission and utilization policies
• work to reduce the loss or theft of firearms during shipment between FFLs and to improve reporting of such losses or thefts
• issue a public report analyzing how gun manufacturers market firearms to minors

Disclaimer: This article should not be construed as legal advice.