Right-Wing Media Wrongly Insist President Obama's Executive Actions On Guns "Change The Law"

Executive Actions Aim To "Ensure Smart And Effective Enforcement" Of Existing Gun Laws

››› ››› NICK FERNANDEZ

Right-wing media are mischaracterizing President Obama's executive actions on gun safety as "a blatant violation of the separation of powers" and falsely claiming that the president is attempting to circumvent Congress to "change the law", while ignoring the fact that President Obama's executive actions seek to "clarify" and "ensure ... enforcement of [current] gun laws."

President Obama Announces Executive Actions In Attempt To Curb Gun Violence

New York Times: President Obama Announces Executive Actions To Address Gun Violence, "Vow[ing] To Curb The Bloodshed." On January 5, President Obama announced a number of executive actions intended to curb gun violence in the United States. According to The New York Times, "the executive actions he plans are only suggested 'guidance' for federal agencies, not binding regulations":

As tears streamed down his face, President Obama on Tuesday condemned the gun violence that has reached across the United States and vowed to curb the bloodshed with or without Congress.

In this room right here, there are a lot of stories. There's a lot of heartache," Mr. Obama said in the White House East Room, flanked by relatives of those struck down in mass shootings, including former Representative Gabrielle Giffords of Arizona. "There's a lot of resilience, there's a lot of strength, but there's also a lot of pain."

For all the emotion he showed, Mr. Obama nonetheless faces legal, political and logistical hurdles that are likely to blunt the effect of the plan he laid out.

A number of the executive actions he plans are only suggested "guidance" for federal agencies, not binding regulations. They were framed mostly as clarifying and enforcing existing law, not expanding it. And many of those measures rely on hefty funding increases that a Republican-led Congress is almost certain to reject.

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Even the administration said it was impossible to gauge how big an effect the steps might have, how many new gun sales might be regulated or how many illegal guns might be taken off the streets. [The New York Times1/5/16]

Right-Wing Media Mischaracterize Executive Actions As An Attempt To "Change The Law"

RedState: Obama Administration "Is Convinced They Can Change The Law" With Executive Actions. In a January 5 post, the right-wing blog RedState called the president's executive actions on guns "overreach" and insisted that "[t]he administration is convinced they can change the law" without the consent of Congress:

Last evening, Obama released his new executive order that is designed to prevent exactly zero of any mass shootings in recent, or maybe recorded, history but which will serve as a tool to make life just a little more difficult for any legal purchaser of firearms. The order does significant damage, though. For the first time it is roping the Social Security Administration and health care providers into the business of reporting medical data to the agency that performs background checks.

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It tries to unilaterally change the definition of a firearm dealer. The definition is not open to interpretation.

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The administration is convinced they can change the law. [RedState.com, 1/5/16]

Fox's Napolitano: "He's Going To Write That Into The Law ... That Is A Blatant Violation Of The Separation Of Powers." On the January 5 edition of Fox News' Outnumbered, Fox News senior judicial analyst Andrew Napolitano claimed that the president's executive action clarifying the law on what it means to be a gun dealer amounted to Obama saying "[h]e's going to write that into the law," which "is a blatant violation of the separation of powers":

ANDREW NAPOLITANO: There are many things that the president talked about that he has the ability to do. Can he hire more FBI agents? Of course he can. Can he make background searches more efficient? Yes, he can. Can he expand the database on which background searches rely? Can he enforce federal gun laws more aggressively? Yes, but that shouldn't be newsworthy. He should have been doing that from day one on the job, rather than waiting to year eight to even suggest that he's going to do that. But what he cannot do is change the law. And here's where he purports to -- and prosecute people who disobey the law that he wrote. Congress, on three occasions, had before it the ability to change the law so that if you give a gun to me, you have to become a licensed gun dealer and do a background search on me.

HARRIS FAULKNER (HOST): That was the number one thing he mentioned.

NAPOLITANO: Correct. Congress three times said no. He's going to write that into the law, and he's going to prosecute people who fail to do it. That is a blatant violation of the separation of powers, which basically says, under the Constitution, Congress writes the laws, the president enforces them. [Fox News, Outnumbered1/5/16]

Fox's Kelly: Current Laws Have Not Stopped Mass Shootings, Which "Raise[s] Questions About Whether More Gun Laws Are The Answer." On the January 7 edition of Fox News' The Kelly File, in a discussion about President Obama's CNN town hall on gun violence, host Megyn Kelly asserted that "the laws that are on the books have not done anything" to prevent mass shootings, which "raise[s] questions about whether more gun laws are the answer":

MEGYN KELLY (HOST): Bill [Burton], when you heard him tick through all of those mass murders, and all of the murderers passing the background checks that are on the books, it's a powerful argument that these nips around the edges aren't going to do anything. I mean, like, the laws that are on the books have not done anything, and these nips around the edges aren't going to do anything. And they raise questions about whether more gun laws are the answer.

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MARC THIESSEN: The other thing is, Bill is saying, "what should be done?" Maybe the president ought to not be presiding over a 40 percent reduction in prosecution of gun crimes under existing gun laws. I mean, he wrote in The New York Times today that there is a "crisis of gun violence." Yet under his administration, according to a Syracuse University study, 40 percent down compared to George W. Bush ten years ago, in terms of gun prosecutions. So either the president -- if there is really an epidemic of gun violence, then the president is not doing his job. But the fact is, he had to face Taya Kyle saying no. There is a record low, a 44-year low of gun crimes in this country. [Fox News, The Kelly File1/7/16]

...But President Obama's Executive Actions Are "Within The Administration's Power" And Actually Seek To "Clarify" And "Ensure ... Effective Enforcement" Of Current Gun Laws 

White House: Executive Actions On Guns Aim To "Ensure Smart And Effective Enforcement Of Our Gun Laws." In a January 4 press release, the White House explained that the president's executive actions are intended to "help enforce our gun laws" and help make "communities safer" from gun violence. According to a White House fact sheet, the actions:

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.

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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.

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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.

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 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. [The White House, Office of the Press Secretary, 1/4/16]

Constitutional Law Scholars Explained Background Checks Can Be Constitutionally Expanded Through Executive Action. On November 12, 2015, 23 constitutional law scholars organized by the American Constitution Society for Law and Policy issued a statement urging the president to "clarify[] which gun sellers are 'engaged in the business' of dealing firearms, and therefore must obtain federal licenses and conduct background checks on would-be gun purchasers," explaining that such an executive action was "within the Administration's power" and "would ensure the federal gun laws are applied consistent with congressional intent":

We do not purport to offer here a comprehensive list of all actions that the Administration might take to reduce gun violence. But we do highlight several important actions within the Administration's power that would ensure the federal gun laws are applied consistent with congressional intent. Among these steps are:

Clarifying which gun sellers are "engaged in the business" of dealing firearms, and therefore must obtain federal licenses and conduct background checks on would-be gun purchasers. Just as services like eBay and Craigslist allow Americans to offer a broad range of goods for sale online, numerous Internet services facilitate the sale of large numbers of firearms by unlicensed dealers, frequently without conducting any background checks. The failure of these high-volume sellers to obtain licenses and conduct background checks creates a ready source of firearms for dangerous criminals and other prohibited persons, and fuels the illegal gun trafficking that arms criminals and undermines efforts to reduce gun violence. The Administration should act to close this dangerous loophole. [American Constitution Society for Law and Policy, 11/12/15]

In Fact, The National Rifle Association Is Partly To Blame For The Lack Of Enforcement Of Federal Gun Laws

The NRA Has Consistently Acted To Weaken The Agency Tasked With Enforcing Federal Gun Laws. The National Rifle Association (NRA) has routinely interfered with the Bureau of Alcohol, Tobacco, and Firearms (ATF), the agency charged with enforcing federal gun laws. The NRA has convinced its political allies in Congress to limit the ATF's budget and its authority, actively opposed nominees for a permanent director of the agency, and even attempted to force the ATF to divert its resources to restoring the gun rights of convicted felons. [Media Matters10/28/15]

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