Obama Issues More Executive Orders on Gun Control: Is That Legal?

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Obama - Image by Martin H.

Are President Obama’s gun control executive orders legal? Image by Martin H.

On August 29, 2013, President Obama issued two executive orders to regulate firearms. One of these orders closes a loophole used by purchasers to avoid background checks, the other denies import authorizations for the majority of firearms.

Background Check Loophole Closed

In current law, to avoid having a background check, purchasers can create a corporation or a trust to buy firearms. Trusts are not subject to background checks; this allowed convicted felons and others prohibited from owning or possessing firearms to acquire guns without going through the usual procedure.

President Obama’s new executive order requires everyone associated with such corporation or trust to go through a background check, effectively closing the loophole.

Importing Guns: Denied by Executive Order

The second executive order Obama signed in August deals with military firearms provided to other countries and then imported back into the United States. It is illegal to import these weapons without authorization from the federal government. This order makes it virtually impossible to grant permission to bring these firearms back into the U.S. – stating that the government will now deny import requests except in rare circumstances such as a request by a museum to acquire such weapons.

These executive orders are in addition to the 23 executive orders signed by the president on January 16, 2013 that also dealt with gun control.

What are Executive Orders?

Executive orders are not specified in the Constitution. However, it is generally agreed a president has the authority to issue such orders under Article II.  Section 1 of Article II grants executive power to the president while Section 3 gives responsibility to the president to ensure that the laws passed by Congress are “faithfully executed.”

Executive orders are not laws – but when signed, have the force of law, and Congressional authority is not necessary to make an executive order binding. The theory is that these orders are not laws but rather directions to federal agencies and bodies in how they are to interpret and carry out laws passed by Congress.

For example, Congress decided certain people who buy firearms undergo background checks. It was not the intent of the lawmakers to allow potential purchasers to bypass these checks by setting up corporations or trusts. This order simply directs the ATF to perform checks on those who are behind the corporation or trust, and is not a change in the substantive law of background checks.

Similarly, the US allows citizens and groups to import guns back into the United States after they have been exported to another country. The federal government must consent to the import, and the order signed on August 29 merely tightens the rules for purchasers who wish to bring these firearms back into the United States.

Again, this order is not a new law that requires governmental consent to import these weapons, but a change in the guidelines as to who can be granted permission to import firearms that have been exported to another country and then brought back to the United States.

Since 2005, there have been more than a quarter of a million requests made to the ATF to import such firearms from other countries.

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