National groups on both sides of the gun debate say they are expecting President Barack Obama to issue an executive action in the next few weeks that would close what gun control groups say are loopholes that allow criminals to avoid background checks.
Groups from the Newtown Action Alliance after the 2012 shooting of 20 children and 6 adults at a Connecticut elementary school, and the Gun Owners of America are expecting the executive order to narrow exemptions intended to excuse those who sell only few guns from conducting the checks.
Current law exempts checks if sellers sell firearms only “occasionally” and are not “engaged in the business” of selling guns.
Critics, though, say those terms, though are so vague they have opened the door to the sale of hundreds of guns to criminals and those with histories of domestic abuse, particularly at gun shows and online.
They are already planning to sue. In anticipation of the move, Sen. Rand Paul, R-Kentucky, also introduced legislation Monday voiding any Obama executive order that infringes on the Second Amendment or Congress’ powers is only advisory unless enacted by lawmakers.
“What we’re expecting is for Obama to try doing something illegal,” said Michael Hammonds, legal counsel for the Gun Owners of America. “I don’t think he cares any more if what he does is legal.”
He called a move narrowing the order a legal “Hail Mary” by a president frustrated at not being able to push tougher gun laws through Congress.
The National Rifle Association’s national office, however, did not return calls and e-mails for comment. Doug DuBois, Jr., executive director of the Texas State Rifle Association, said in a statement to CNHI, “The Executive Order has not been explained and it is speculation at this time as to what would be impacted.”
Still, Hammonds, Newtown Action Alliance chairwoman Po Murray, and Everytown for Gun Safety legal counsel, Jonas Oransky told CNHI they expect the order to deal with the exemptions.
Gun rights groups have focused on the issue, even taking out ads on Washington, D.C. taxis.
Twenty-four Democratic senators, including Sen. Elizabeth Warren, of Massachusetts, wrote Obama Nov. 23 urging him to address a “loophole that allows guns to be sold without a background check by eliminating the ambiguity surrounding the term ‘engaged in business.’”
The White House has not revealed Obama’s plans but senior adviser Valerie Jarrett said at a vigil for the Newtown shootings two weeks ago the president has urged his aides to submit a plan to him “in short order.”
Everytown for Gun Safety, said ambiguity over the exemptions have prevented prosecutors from winning illegal gun sale cases. That’s kept prosecutors from even trying to prosecute some cases, the group said in a Nov. 12 report on the issue
The report found only 30 percent of defendants accused of not doing background checks despite being “engaged in the business” of selling the weapons were convicted. In half of such cases that went to trial, the defendant was acquitted by a jury, the report said.
IN 2011, for instance, the group said a Florida jury acquitted a man accused the Bureau of Alcohol, Tobacco, Firearms and Explosives of selling more than 400 guns between 2006 and 2010 at as many as 25 gun shows a year, and making as much as $50,000 in a year.
His attorney argued for the acquittal saying, “’You know, it would be easy if we had a law that says you can sell 50 firearms in a year, or 10 firearms or 100, but that’s not what it is,’” the group quoted the attorney as saying.
The push also comes after a high profile cases involving guns bought from gunshows or online. Wisconsin Democrat Rep. Gwen Moore wrote Armslist, a Noble, Oklahoma-based online gun sales site, in 2012 after a Wisconsin man, Radcliff Haughton shot and killed his wife and two other people in a spa.
Haughton was barred from buying or possessing a firearm because his wife had obtained a restraining order against him. But he was able to avoid a background check and buy a gun from an unlicensed seller on the site, Moore wrote the company.
“While licensed gun dealers are required by federal law to conduct background checks, private sellers are not. For Haughton, this lethal loophole made breaking the law to buy a .40-caliber handgun as easy as searching the Internet,” Moore wrote.
Neither the site nor its attorney returned an e-mail seeking comment.
Oransky acknowledged in an interview that Obama can not eliminate the exemption without a vote of Congress. But he said the administration has the discretion to define what the terms mean.
The group is recommending the executive action clarify a person is not an “occasional seller” if they sell more than 25 guns in a year. The group also said factors like whether sellers deal unused guns or guns in their original packaging, or if they resell the firearms shortly after acquiring them, should be factored in.
Such an action would stand up in court, Oransky said. Statements made by members of Congress show the exemptions created in the 1986 Firearm Owners Protection Act were never to cover those selling a handful of guns.
But Hammonds said even a 25-gun limit could impact those just trying to sell their collections. “Gun groups claim there’s a loophole, whenever gun rights exist,” Hammonds said.
Sen. James Inhofe, R-Oklahoma, opposed unilateral action by Obama. “Time and again this president turns to executive orders when he can’t get his way legislatively.
“We have seen that these unilateral actions do not hold up in court. Instead of focusing on preventing more terrorist attacks, Obama and his administration are working to make it harder for law-abiding citizens to exercise their 2nd Amendment rights through policies that would not have stopped any of the recent mass shootings,” Inhofe said.
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