At last, President Obama has unveiled his long-promised “I have a pen and a phone” list of actions he wants to take, unilaterally, to single-handedly take on the straw man of “gun violence.”
What it turns out to be is a combination of sternly-worded memos, budget proposals Congress will ignore, restatements of existing law, and a few proposed rules likely to face considerable opposition.
Here’s our analysis.
1. Keep guns out of the wrong hands through background checks.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is making clear that it doesn’t matter where you conduct your business—from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks.
Not an executive order. The president is very big on “Let me be clear,” but this has always been the law. No change.
ATF is finalizing a rule to require background checks for people trying to buy some of the most dangerous weapons and other items through a trust, corporation, or other legal entity.
This rule not be a big issue if a trustee simply needs to pass a federal background check. This will be a huge problem if it attempts to place trustees at the mercy of a local law enforcement sign-off.
Attorney General Loretta E. Lynch has sent a letter to States highlighting the importance of receiving complete criminal history.
Not an executive order, but a letter! More “let me be clear,” signifying nothing.
The Federal Bureau of Investigation (FBI) is overhauling the background check system to make it more effective and efficient. The envisioned improvements include processing background checks 24 hours a day, 7 days a week, and improving notification of local authorities when certain prohibited persons unlawfully attempt to buy a gun. The FBI will hire more than 230 additional examiners and other staff to help process these background checks.
Faster 4473 approvals sounds like a good thing!
2. Make our communities safer from gun violence.
The Attorney General convened a call with U.S. Attorneys around the country to direct federal prosecutors to continue to focus on smart and effective enforcement of our gun laws.
Not an executive order. Effective federal enforcement of gun laws would be great: to date, this administration has done a very poor job of prosecuting criminals — 30% fewer than the previous (George W. Bush) administration.
The President’s FY2017 budget will include funding for 200 new ATF agents and investigators to help enforce our gun laws.
Not an executive order. “The president proposes; Congress disposes.” It will be up to the Republican-majority U.S. House and Senate to look at the President’s proposals, and decide if they are worthy of any action.
ATF has established an Internet Investigation Center to track illegal online firearms trafficking and is dedicating $4 million and additional personnel to enhance the National Integrated Ballistics Information Network.
Again, pursuing criminals sounds like a great idea, and a great change for this administration.
ATF is finalizing a rule to ensure that dealers who ship firearms notify law enforcement if their guns are lost or stolen in transit.
There’s already a rule that dealers have to report thefts from their inventory. Requiring reporting of guns lost in transit sounds entirely sensible, if this is actually within the ATF’s legal authority.
The Attorney General issued a memo encouraging every U.S. Attorney’s Office to renew domestic violence outreach efforts.
Not an executive order, but another letter. Domestic violence is horrible, and who knows? Maybe “outreach” will help.
3. Increase mental health treatment and reporting to the background check system.
The Administration is proposing a new $500 million investment to increase access to mental health care.
Not an executive order. Again, the President can propose anything. It’s up to Congress whether the proposal goes anywhere.
The Social Security Administration has indicated that it will begin the rulemaking process to include information in the background check system about beneficiaries who are prohibited from possessing a firearm for mental health reasons.
Rulemaking is a real thing: the proposed rules go up for public viewing and comment for months before they are implemented. In the past, we have been very successful in shutting down unfavorable proposed rules with overwhelming numbers of responses.
The Department of Health and Human Services is finalizing a rule to remove unnecessary legal barriers preventing States from reporting relevant information about people prohibited from possessing a gun for specific mental health reasons.
This administration often sees civil rights as “legal barriers.” Current federal law, however, already excludes adjudicated mentally ill individuals from possessing guns.
4. Shape the future of gun safety technology.
The President has directed the Departments of Defense, Justice, and Homeland Security to conduct or sponsor research into gun safety technology.
Let’s have the FBI, DOD and ICE be the guinea pigs to try the new “smart” guns.
The President has also directed the departments to review the availability of smart gun technology on a regular basis, and to explore potential ways to further its use and development to more broadly improve gun safety.
So they’ll read Shotgun News (okay, Firearm News, now) too?
Congress should support the President’s request for resources for 200 new ATF agents and investigators to help enforce our gun laws, as well as a new $500 million investment to address mental health issues.
Not an executive order. Again, the President can propose anything. It’s up to Congress whether the proposal goes anywhere.
Because we all must do our part to keep our communities safe, the Administration is also calling on States and local governments to do all they can to keep guns out of the wrong hands and reduce gun violence. It is also calling on private-sector leaders to follow the lead of other businesses that have taken voluntary steps to make it harder for dangerous individuals to get their hands on a gun. In the coming weeks, the Administration will engage with manufacturers, retailers, and other private-sector leaders to explore what more they can do.
In other words: talk, talk, talk.
New Actions by the Federal Government
Keeping Guns Out of the Wrong Hands Through Background Checks
The most important thing we can do to prevent gun violence is to make sure those who would commit violent acts cannot get a firearm in the first place. The National Instant Criminal Background Check System (NICS), which was created by Congress to prevent guns from being sold to prohibited individuals, is a critical tool in achieving that goal. According to the Bureau of Justice Statistics, the background check system has prevented more than 2 million guns from getting into the wrong hands.
They don’t mention that more than 95% of those denials are overturned for being incorrect.
We know that making the system more efficient, and ensuring that it has all appropriate records about prohibited purchasers, will help enhance public safety. Today, the Administration is announcing the following executive actions to ensure that all gun dealers are licensed and run background checks, and to strengthen the background check system itself:
Clarify that it doesn’t matter where you conduct your business—from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks. Background checks have been shown to keep guns out of the wrong hands, but too many gun sales—particularly online and at gun shows—occur without basic background checks. Today, the Administration took action to ensure that anyone who is “engaged in the business” of selling firearms is licensed and conducts background checks on their customers. Consistent with court rulings on this issue, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has clarified the following principles:
- A person can be engaged in the business of dealing in firearms regardless of the location in which firearm transactions are conducted. For example, a person can be engaged in the business of dealing in firearms even if the person only conducts firearm transactions at gun shows or through the Internet. Those engaged in the business of dealing in firearms who utilize the Internet or other technologies must obtain a license, just as a dealer whose business is run out of a traditional brick-and-mortar store.
This is nothing new. Dealers need licenses. If you’re in the business without a license, you’re a criminal.
- Quantity and frequency of sales are relevant indicators. There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement. But it is important to note that even a few transactions, when combined with other evidence, can be sufficient to establish that a person is “engaged in the business.” For example, 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, when other factors also were present.
This is nothing new. Courts have already ruled on this.
- There are criminal penalties for failing to comply with these requirements. A person who willfully engages in the business of dealing in firearms without the required license is subject to criminal prosecution and can be sentenced up to five years in prison and fined up to $250,000. Dealers are also subject to penalties for failing to conduct background checks before completing a sale.
This is nothing new.
- Require background checks for people trying to buy some of the most dangerous weapons and other items through a trust or corporation. The National Firearms Act imposes restrictions on sales of some of the most dangerous weapons, such as machine guns and sawed-off shotguns. But because of outdated regulations, individuals have been able to avoid the background check requirement by applying to acquire these firearms and other items through trusts, corporations, and other legal entities. In fact, the number of these applications has increased significantly over the years—from fewer than 900 applications in the year 2000 to more than 90,000 applications in 2014. ATF is finalizing a rule that makes clear that people will no longer be able to avoid background checks by buying NFA guns and other items through a trust or corporation.
The reason that individuals have chosen to form a trust is because their police chiefs refused to sign off on paperwork for purely political reasons, regardless of the clean record of the applicant. The new rule, released today, removes the local law enforcement official as a stumbling block, which is actually good news. The bad news is that the new rule increases the hassle and expense for trust members. We’ll have more on this later.
- Ensure States are providing records to the background check system, and work cooperatively with jurisdictions to improve reporting. Congress has prohibited specific categories of people from buying guns—from convicted felons to users of illegal drugs to individuals convicted of misdemeanor crimes of domestic violence. In the wake of the shootings at Virginia Tech in 2007, Congress also created incentives for States to make as many relevant records as possible accessible to NICS. Over the past three years, States have increased the number of records they make accessible by nearly 70 percent. To further encourage this reporting, the Attorney General has written a letter to States highlighting the importance of receiving complete criminal history records and criminal dispositions, information on persons disqualified for mental health reasons, and qualifying crimes of domestic violence. The Administration will begin a new dialogue with States to ensure the background check system is as robust as possible, which is a public safety imperative.
Talk, talk, talk. By the way, GOCRA worked to pass legislation in Minnesota to ensure that convicted people’s records are forwarded to NICS right away — and that when people get their rights restored in Minnesota, that info goes to NICS right away, too.
Make the background check system more efficient and effective. In 2015, NICS received more than 22.2 million background check requests, an average of more than 63,000 per day. By law, a gun dealer can complete a sale to a customer if the background check comes back clean or has taken more than three days to complete. But features of the current system, which was built in the 1990s, are outdated. The Federal Bureau of Investigation (FBI) will take the following steps to ensure NICS operates more efficiently and effectively to keep guns out of the wrong hands:
- FBI will hire more than 230 additional NICS examiners and other staff members to assist with processing mandatory background checks. This new hiring will begin immediately and increase the existing workforce by 50 percent. This will reduce the strain on the NICS system and improve its ability to identify dangerous people who are prohibited from buying a gun before the transfer of a firearm is completed.
As above, good. If we have to jump through the hoops, they should be as fast as possible.
- FBI has partnered with the U.S. Digital Service (USDS) to modernize NICS. Although NICS has been routinely upgraded since its launch in 1998, the FBI is committed to making the system more efficient and effective, so that as many background checks as possible are fully processed within the three-day period before a dealer can legally sell a gun even if a background check is not complete. The improvements envisioned by FBI and USDS include processing background checks 24 hours a day, 7 days a week to improve overall response time and improving notification of local authorities when certain prohibited persons unlawfully attempt to purchase a firearm.
Government efficiency. We will hold our breaths waiting for that!
Making Our Communities Safer from Gun Violence
In order to improve public safety, we need to do more to ensure smart and effective enforcement of our gun laws and make sure that criminals and other prohibited persons cannot get their hands on lost or stolen weapons. The Administration is therefore taking the following actions:
Ensure smart and effective enforcement of our gun laws. In a call earlier today, the Attorney General discussed the importance of today’s announcements and directed the Nation’s 93 U.S. Attorneys across the country to continue to focus their resources—as they have for the past several years under the Department’s Smart on Crime initiative—on the most impactful cases, including those targeting violent offenders, illegal firearms traffickers, and dangerous individuals who bypass the background check system to acquire weapons illegally. During the call, the Attorney General also emphasized ongoing initiatives to assist communities in combating violent crime, including ATF’s efforts to target the “worst of the worst” gun crimes. These efforts will also complement the following actions announced today:
- The President’s budget for FY2017 will include funding for 200 new ATF agents and investigators who can help enforce our gun laws, including the measures announced today. Strategic and impactful enforcement will help take violent criminals off the street, deter other unlawful activity, and prevent guns from getting into the wrong hands
We hate to repeat ourselves, but the President can “propose” anything he wants.
- ATF is dedicating $4 million and additional personnel to enhance the National Integrated Ballistics Information Network (NIBIN). The NIBIN database includes ballistic evidence that can be used by analysts and investigators to link violent crimes across jurisdictions and to track down shooters who prey on our communities. In February 2016, ATF is standing up the National NIBIN Correlation and Training Center—which will ultimately provide NIBIN matching services at one national location, rather than requiring local police departments to do that work themselves. The Center will provide consistent and capable correlation services, making connections between ballistic crime scene evidence and crime guns locally, regionally, and nationally. These enhancements will support ATF’s crime gun intelligence and enforcement efforts, particularly in communities most affected by violent crime.
We support the idea of the Obama Justice Department (finally) starting to prosecute more violent criminals.
- ATF has established an Internet Investigations Center (IIC) staffed with federal agents, legal counsel, and investigators to track illegal online firearms trafficking and to provide actionable intelligence to agents in the field. The IIC has already identified a number of significant traffickers operating over the Internet. This work has led to prosecutions against individuals or groups using the “dark net” to traffic guns to criminals or attempting to buy firearms illegally online.
We support this administration’s new interest in pursuing criminals!
- Ensure that dealers notify law enforcement about the theft or loss of their guns. Under current law, federal firearms dealers and other licensees must report when a gun from their inventory has been lost or stolen. The regulations are ambiguous, however, about who has this responsibility when a gun is lost or stolen in transit. Many lost and stolen guns end up being used in crimes. Over the past five years, an average of 1,333 guns recovered in criminal investigations each year were traced back to a licensee that claimed it never received the gun even though it was never reported lost or stolen either. Today, ATF issued a final rule clarifying that the licensee shipping a gun is responsible for notifying law enforcement upon discovery that it was lost or stolen in transit.
As above, this is a good idea, as long as it doesn’t turn into a “he-said-she-said” gotcha between manufacturers, distributors, carriers, and dealers.
- Issue a memo directing every U.S. Attorney’s Office to renew domestic violence outreach efforts. In the event of an emergency, victims of domestic violence should call 911 or otherwise contact state or local law enforcement officials, who have a broader range of options for responding to these crimes. To provide an additional resource for state, local, and tribal law enforcement and community groups focused on domestic violence, the Attorney General is issuing a memo directing U.S. Attorney’s Offices around the country to engage in renewed efforts to coordinate with these groups to help combat domestic violence and to prevent prohibited persons from obtaining firearms.
Increase Mental Health Treatment and Reporting to the Background Check System
The Administration is committed to improving care for Americans experiencing mental health issues. In the last seven years, our country has made extraordinary progress in expanding mental health coverage for millions of Americans. This includes the Affordable Care Act’s end to insurance company discrimination based on pre-existing conditions, required coverage of mental health and substance use disorder services in the individual and small group markets, and an expansion of mental health and substance use disorder parity policies, all of which are estimated to help more than 60 million Americans.
About 13.5 million more Americans have gained Medicaid coverage since October 2013, significantly improving access to mental health care. And thanks to more than $100 million in funding from the Affordable Care Act, community health centers have expanded behavioral health services for nearly 900,000 people nationwide over the past two years. We must continue to remove the stigma around mental illness and its treatment—and make sure that these individuals and their families know they are not alone. While individuals with mental illness are more likely to be victims of violence than perpetrators, incidents of violence continue to highlight a crisis in America’s mental health system. In addition to helping people get the treatment they need, we must make sure we keep guns out of the hands of those who are prohibited by law from having them. Today, the Administration is announcing the following steps to help achieve these goals:
So…the President wants to “remove the stigma” of getting mental health treatment, while using mental health treatment as an excuse to take away people’s rights? We don’t think that makes much sense.
- Dedicate significant new resources to increase access to mental health care. Despite our recent significant gains, less than half of children and adults with diagnosable mental health problems receive the treatment they need. To address this, the Administration is proposing a new $500 million investment to help engage individuals with serious mental illness in care, improve access to care by increasing service capacity and the behavioral health workforce, and ensure that behavioral health care systems work for everyone. This effort would increase access to mental health services to protect the health of children and communities, prevent suicide, and promote mental health as a top priority.
We support increased care for Americans with mental illness.
- Include information from the Social Security Administration in the background check system about beneficiaries who are prohibited from possessing a firearm. Current law prohibits individuals from buying a gun if, because of a mental health issue, they are either a danger to themselves or others or are unable to manage their own affairs.
Actually, “current law” prohibits people “…adjudicated as a mental defective or been committed to a mental institution,” a much higher threshold than the ATF regulation.
- The Social Security Administration (SSA) has indicated that it will begin the rulemaking process to ensure that appropriate information in its records is reported to NICS. The reporting that SSA, in consultation with the Department of Justice, is expected to require will cover appropriate records of the approximately 75,000 people each year who have a documented mental health issue, receive disability benefits, and are unable to manage those benefits because of their mental impairment, or who have been found by a state or federal court to be legally incompetent. The rulemaking will also provide a mechanism for people to seek relief from the federal prohibition on possessing a firearm for reasons related to mental health.
We are very concerned that this will cast far too wide a net: needing someone to manage your checkbook does not mean you are incapable of being a safe gun owner.
- Remove unnecessary legal barriers preventing States from reporting relevant information to the background check system. Although States generally report criminal history information to NICS, many continue to report little information about individuals who are prohibited by Federal law from possessing or receiving a gun for specific mental health reasons. Some State officials raised concerns about whether such reporting would be precluded by the Privacy Rule issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Today, the Department of Health and Human Services issued a final rule expressly permitting certain HIPAA covered entities to provide to the NICS limited demographic and other necessary information about these individuals.
The important words, here, are “adjudicated” and “committed.” As we have always insisted on at the State Capitol, Minnesota law doesn’t allow removing gun rights before you get your day in court. GOCRA has twice helped pass legislation requiring that state courts and agencies report accurate and timely commitment information to NICS.
Shaping the Future of Gun Safety Technology
Tens of thousands of people are injured or killed by firearms every year—in many cases by guns that were sold legally but then stolen, misused, or discharged accidentally. Developing and promoting technology that would help prevent these tragedies is an urgent priority. America has done this in many other areas—from making cars safer to improving the tablets and phones we use every day. We know that researchers and engineers are already exploring ideas for improving gun safety and the tracing of lost or stolen guns. Millions of dollars have already been invested to support research into concepts that range from fingerprint scanners to radio-frequency identification to microstamping technology.
None of which is ready for prime time, as evidenced by the fact that no police or military agency will touch any of these technologies!
As the single largest purchaser of firearms in the country, the Federal Government has a unique opportunity to advance this research and ensure that smart gun technology becomes a reality—and it is possible to do so in a way that makes the public safer and is consistent with the Second Amendment. Today, the President is taking action to further this work in the following way:
And,once more, the President can direct agency actions, but Congress must fund them.
There you have it: A few concerns, and a lot of bluster.