What Does It Mean?

by George Paul Tire

On Monday, the long dreaded Obama actions on guns were announced. My biggest surprise was that there appears to be no actual executive order. It is instead, a speech and press release directing “actions” by the executive branch. That, in my view, makes the whole thing far more nebulous and open to broader interpretation than a proper executive order. It also means there isn’t one single document that can be rescinded by legislative action or a new president. While I’m not a fan of the Public Broadcasting system, it has an article on what the nuances of “actions” vs. an executive order might mean.

There seem to be three main thrusts in play. The first, and most heralded, is the drive to expand background checks on firearms purchases by expanding what it means to be a dealer. Secondarily, it involves an ATF rule change, for which there is a 248 page document, which will require background checks, fingerprints and photos of all members of a gun trust used to purchase Class III weapons like suppressors, automatic weapons and short barreled rifles or shotguns. Currently, only the person picking up the item undergoes a background check (in Florida, at least) and there are no requirements for photos or fingerprints.

Both of these changes will prove onerous. For most, the definition of being in the business of selling firearms is very chilling. They clearly consider the sale of only one or two guns to put you in the business and the press release mentions that there have already been court cases winning convictions involving so few sales. Over the years, it has been made far more difficult and expensive to obtain a Federal Firearms License (FFL) to sell guns, so the only practical way to safely transfer a firearm in the future will be to do it at a shop and have the background check performed, adding to the expense and hassle of selling your own property.

The requirements to fingerprint, photograph and background check every member of a gun trust is very cumbersome. Cynthia Clark, an estate planning and gun trust attorney in Bradenton, FL, has posted her initial thoughts on the rule change and it is worth a read. The fact that all members of a trust have to be present for the background check will make the process especially burdensome if one wants to have a relative or trusted friend on the trust who lives far away. The only positive is that you still don’t have to get a chief law enforcement officer (CLEO) to sign off on a trust. Many refuse to do so. Your purchase will, however, be reported to your CLEO and assuredly entered into some database someplace which may or may not be secure. This may also give the ATF wiggle room to deny an application should your CLEO figure out some way to object.

More legal views on the ATF rule change can be found at the site of Jacksonville, FL attorney David M. Goldman.

Remember that if your application is denied, you lose the $200 ATF fee and you have probably already paid for your Class III item, so that money is tied up as well. Some dealers may not be willing to refund all (or any) of the purchase price. After all, their money and merchandise have been tied up as well and they just lost the sale.

The next thrust is keeping guns from the hands of those with “mental health issues.” This seems laudable and the press release notes efforts to “remove the stigma around mental health” issues, though it clearly stigmatizes the idea that one might have a firearm. The concern is how all of this is defined and that definition appears likely to be made by whim and caprice. Chillingly, the report discusses sharing of information among state and federal agencies by “removing unnecessary legal barriers.” This sharing will likely be done with the same security measures used to protect federal security clearance files,

None of us wish for crazy people to have guns, but how does one define crazy? Does it mean you saw a marriage counselor while trying to prevent a divorce and you admitted the situation made you angry and depressed? What if you are a soldier and you admit that seeing friends killed in action was disturbing? Who knows and can we trust this administration to not use any excuse to label as many as possible as having “mental health issues” and ending their right to purchase and own firearms?

For some more info on the ramifications of this point, once again, you can go to Cynthia Clark who has an article about how this could work out.

A final key point in these “Executive Actions to Reduce Gun Violence and Keep Our Communities Safer” is the use of technology to trace guns and prevent” unauthorized use.” This includes microstamping, presumably to identify which gun fired a round of ammunition and so-called “smart” guns that can only be fired by designated users. Often mentioned in smart gun technology is the idea that guns could be disabled remotely. For my tastes, the added cost and complexity aren’t welcome nor is the idea of the vulnerabilities of hacking my gun. My computer and the power grid worry me enough, thank you.

How to fight all of this? Well, that’s going to be tough. Congress could do something, but it would take a veto proof vote. Our alleged republican majority has already shown it lacks the spine to use the budget to control this administration, so that leaves the courts. That will most likely have to be on a case by case fight which would probably wind up at the Supreme Court. Heaven help the poor souls who have to take on that struggle. During the process, which will take years, they will likely be felons and bankrupted.

Presumably, the “actions” take place immediately while the ATF rule changes will happen 180 days from January 4, 2016. Beware.

UPDATE:

I recently covered the Bureau of Alcohol, Tobacco and Firearms rule changes  affecting the purchase of things like sound suppressors, short barreled rifle and shotguns and automatic weapons, also known as National Firearms Act (NFA) weapons along with the possibility of need a Federal Firearms License to sell guns. One of the popular ways of purchasing NFA items has been the use of a trust or corporation. Buying these items as an individual has required the approval of local chief law enforcement officers (CLEO) which is often impossible to get while trust or corporate ones have not, hence their popularity. While the January rule changes made it far more cumbersome to use a trust for such purchases by requiring fingerprints, photos and background checks for those authorized to possess the item, they also, according to the American Suppressor Association (ASA),  removed the requirement for CLEO sign offs on all such purchases. That will make it far easier for individuals to protect their hearing or enjoy other NFA weapons.

The question is whether or not one needs the advantages of a trust or corporation, which allows any of the designated parties to have possession of the registered hardware. If not, the rule change has some benefits. On the other hand, if you wish for family members to be able to use your suppressor or other NFA item without your presence, then you are going to have to have them all line up together for fingerprints, photos and background checks which previously were not required.

The new rules take effect in July. The ASA says that applications made before July 13th will go in under the old rules, so if you want the benefits of a trust without the extra hassle, act fast.

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