Although likely to survive legal challenges, President Barack Obama’s recent executive actions on gun control are also unlikely to produce dramatic change, experts at Duke say.
Earlier this month, Obama unveiled new executive actions to help curb gun violence—the most controversial of which clarified what it means to be “engaged in the business” of selling firearms. Existing law requires all gun “dealers” to be federally licensed and to run background checks on all transactions and potentially face prosecution for failing to do so. Obama said that people selling firearms online or at gun shows have not always—but should be—required to complete the background checks found in traditional gun stores.
“If you’re doing exactly what Joe’s gun shop is doing, you just don’t have a physical store, you probably should be licensed,” said Kristin Anne Goss, associate professor of public policy and political science, who studies the politics of the gun control movement.
The vast majority of unlicensed private sellers will probably not be required to get licensed under these new guidelines, Goss noted. People selling guns to neighbors one-time-only would not be affected, and the guidance instead addresses those who regularly sell firearms in bulk at gun shows, who Obama said are often not federally licensed.
“He didn’t close the loophole,” Goss said. “We think that the vast majority of private sellers are not effectively gun dealers. They’re really just individuals selling guns to their neighbors, and they wouldn’t meet the criteria.”
Obama also announced renewed efforts to tackle mental health issues, explore smart gun technology and requested further funding from Congress for the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Are Obama’s actions constitutional?
Republican presidential candidates lashed out following Obama’s announcement. A campaign website for Senator Ted Cruz declared, “Obama wants your guns,” and former Florida Governor Jeb Bush accused Obama of “seizing on every opportunity to advance a gun-grabbing agenda.”
Such rhetoric is blown out of proportion, said Philip Cook, ITT/Terry Sanford professor of public policy. He added that Obama’s actions expanding background checks are unlikely to make it difficult for the “good people” to acquire guns.
“What Obama is talking about is so modest that only children, convicted felons and people who have been sent to a mental institution by court order are basically going to be blocked from getting a gun,” Cook said.
Many Republican presidential candidates have decried these actions as unconstitutional, either because of the Second Amendment or because they exceed the President’s constitutional executive authority.
After the 2008 Supreme Court case District of Columbia v. Heller, which guaranteed an individual right to keep and bear arms, courts have upheld the vast majority of gun control laws challenged as violations of the Second Amendment, noted Joseph Blocher, professor of law.
The laws that have been struck down have been especially stringent outliers such as handgun bans and prohibitions on public carrying, he explained, adding that the Supreme Court’s opinion in Heller explicitly allowed prohibitions on dangerous people or “dangerous and unusual weapons” and also left the door open for other regulations.
“For the most part, there’s no real constitutional question that I think is going to be raised by any plausible backround check requirement, at least as far as the Second Amendment is concerned,” Blocher explained.
People prosecuted for not having a license, however, could potentially bring a statutory-based defense arguing that what Congress had in mind when they defined “engaged in the business” is inconsistent with the prosecutor’s interpretation, said professor of law Darrell Miller.
Claims that Obama does not have the authority to take these actions are unlikely to succeed, noted Ernest Young, Alston and Bird professor of law. He explained that Obama is probably being more cautious with these executive actions in light of executive orders on immigration issued in 2014 that have been held up in court.
Young added that although the abstract idea of the President doing gun control is concerning to some, Obama’s specific actions, which he called “small potatoes,” didn’t seem too controversial or substantive.
“I tend to take a fairly narrow view of executive authority, and this just doesn’t bother me very much,” he said.
Will they be effective?
Although Obama’s actions may have some effect on gun violence, experts do not expect particularly dramatic results.
Cook explained that many people who might be prohibited from buying a gun at a licensed gun store have been attracted to online gun sales often due to the lack of background checks—citing a study finding that one out of every 30 online gun customers were disqualified from owning a gun because they had a criminal record.
Cook added that Obama’s actions will make it harder for people who cannot pass a background check to get guns in this manner. This is unlikely, however, to have a large effect on robberies or assaults, he said.
Cook’s research has also shown that most violent criminals get their guns from social networks including gangs, family member and street sources. In CNN’s “Guns in America” town hall last Thursday, moderator Anderson Cooper pointed out that background checks would not prove effective against these types of transactions.
There may be an effect on the underground market indirectly, however. Requiring those selling at gun shows to be licensed and conduct background checks would make it harder for people to buy guns in bulk and transport them across state lines and feed this market, Cook explained.
Others have questioned expanding background checks on the grounds that they are not effective in the first place. Lars Dalseide, a public affairs media liason for the National Rifle Association’s Institute for Legislative Action, noted that most of the guns used in recent mass shootings, for example, were acquired after a was completed.
As part of his proposal, Obama has encouraged states to report more information to the National Instant Background Check System so that background checks can better identify prohibited individuals.
Although background checks can reduce violent crime when it comes to mental illness, for example, they often only take into account people who have been involuntarily committed to an institution, said Jeffrey Swanson, professor in psychiatry and behavioral sciences. People who have not been involuntarily committed but still have mental health problems are not always caught by background checks.
Swanson described the current system of background checks as both “over and under-inclusive” and that better criteria need to be developed along with expanding the checks.
“Even if we enforce the laws perfectly, if we aren’t capturing the right people we’re going to come up short,” he said.
Dalseide noted that prosecutions of existing gun laws have declined under Obama’s presidency, and argued that these should be enforced prior to creating new laws or rules. Young similarly noted that it is questionable whether these new executive actions will actually be accompanied by increased prosecutions of criminals violating gun laws.
Goss noted that it is difficult to predict how many additional firearm transactions will actually be subject to background checks, but that these executive actions might be important in further galvanizing advocates for gun violence prevention.
“I don’t think anyone can predict what we ultimately care about, which is if this will save lives,” she said. “Having the White House on board will really provide momentum for advocates and that might be, at least in the short-term, the biggest effect of this.”