Obama Administration Circumvents Congress for Two More Gun Control Measures

Even after a wide range of gun control proposals was recently rejected by Congress, the Obama administration continues to push its extreme anti-gun agenda by executive fiat. On August 29, in conjunction with the appointment of B. Todd Jones as director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, Vice President Joe Biden announced two new executive actions on gun control. Even more so than some other policies pushed by this president, these latest actions are a blatant attack on law-abiding gun owners and primarily target firearms collectors.

First, the Obama administration pledged to use executive authority and provisions of the Arms Export Control Act to deny future applications, by private importers, to import "military-grade" firearms for sale to private citizens. Obama's decision would appear to affect primarily the import of M1 Garands and M1 carbines. South Korea currently has a stock of 87,000 M1 Garands and 700,000 M1 carbines claimed as the property of that country's government and, on that basis, otherwise eligible for importation into the United States by private importers.

For years, firearms collectors eager for the opportunity to purchase these rifles have followed the legal status of this importation effort. Previously, the administration flip-flopped on whether it would approve the importation of the South Korean Garands, but it has consistently refused to approve the importation of M1 carbines, on the grounds of their supposed ease of conversion to fully automatic fire capability.  Never mind that M1 carbines have been available to the civilian market through the congressionally-chartered Civilian Marksmanship Program for years.

The administration's reasoning in barring the importation of these rifles — to "help keep military-grade firearms off our streets" — is preposterous. M1 rifles and M1 carbines are legal to acquire and own under federal law and the law of virtually all U.S. states, and all retail purchasers of these firearms would be required under federal law to be screened by the National Instant Criminal Background Check System. Furthermore, the use of rifles of any kind in violent crime is rare. According to the FBI's 2011 Uniform Crime Reports data, more murders are committed each year with blunt objects than rifles, and more than twice as many are committed with a perpetrator's hands or feet. The use of several-decades-old rifles sought primarily by collectors, such as the M1 Garand and M1 carbine, in violent crime is lower still.

The administration also announced a proposed rule change that it claims would close a "loophole" that allows NFA firearms to be acquired by trusts, corporations, or other legal entities without anyone undergoing a background check. The main changes that would be instituted under this proposal are that a newly-created class of "responsible persons" associated with the legal entity would be required to go through background checks prior to that entity's acquisition of an NFA firearm. More troubling, a chief local law enforcement officer of the applicable jurisdiction would be required to sign-off on the transfer by certifying that the fingerprints and photographs submitted in conjunction with the transfer application belonged to the relevant responsible persons and that the officer has no information that receipt of the firearm by such persons would be contrary to law.  Some such officials, however, routinely refuse to participate in the signoff process for purely political or ideological reasons.  Thus, expanding this aspect of the transfer process could effectively prevent the transfer of NFA firearms to trusts and other legal entities in some jurisdictions where they are otherwise legal to acquire and possess.

Moreover, the NFA firearms at issue in the rule are already covered by stringent federal regulations that require federal authorization and special taxes for manufacture and transfer. While they can be registered to trusts or corporations (just as any lawful property can be owned by a trust or corporation), this does not change the fact that people who are prohibited from possessing firearms cannot receive or handle NFA firearms without violating current law.  To suggest that trusts and corporations -- with the formalities, expense, and legal sophistication necessary to create them, not to mention BATFE's own months long approval process — somehow significantly contribute to the acquisition of firearms for criminal purposes is laughable.  These actions are aimed squarely at the law-abiding.

The proposed rule notes a large increase in applications for transfers to legal entities such as trusts in recent years, but it does not indicate these firearms are subsequently being used in crime. In fact, legally registered NFA firearms have never posed a significant crime problem. The new regulation simply adds another layer of bureaucratic red tape to the already expensive and onerous process NFA firearms collectors are forced to navigate.

The president's insistence on pursuing an extreme gun control program despite the will of the people, as expressed through their elected officials, is unfortunate but hardly a surprise. Shortly after the new executive actions were announced, the NRA made clear its opposition to the further burdens these measures pose to gun owners. Going forward, we will use every means at our disposal to thwart these and any other executive actions that infringe on the rights of lawful gun owners, ignore the will of Congress, and harass those who are simply trying to exercise their rights within the law.

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