Law Prof: ‘New ATF Guidance on Gun Sales is Legally Meaningless’

By Woody published on in General, News

Many gun owners have asked us what the likely effects of President Obama’s recently announced executive actions will be, and because we’re not lawyers, we’ve been reluctant to forecast the outcomes of the president’s initiatives and tearful press conference. However, one lawyer, Case Western University School of Law Professor Jonathan H. Adler, wrote on the Washington Post’s The Volokh Conspiracy Opinion blog Jan. 5, that President Obama’s recently announced executive actions will likely have no effect on gun laws.

Guidance to help you understand when a Federal Firearms License is required under federal law.

Guidance to help you understand when a Federal Firearms License is required under federal law.

In Adler’s post, “New ATF guidance on gun sales is legally meaningless (or else it would be unlawful),” the professor lays out the legal reasoning why gun owners needn’t get too exercised about Obama’s “series of executive branch actions (not executive orders) that are supposed to reduce the threat of gun violence.”

Adler writes, “Taken at face value, the new ATF guidance [contained in the White House’s action list] is thus nothing more than a restatement of existing legal requirements. Put another way, it merely identifies those who are already subject to the relevant federal requirements and does not in any way expand the universe of those gun sellers who are required to obtain a license and perform background checks. In other words, it is — as the document says — a guidance, and not a substantive rule. It has no legal effect.”

Adler asks rhetorically, “If the ATF guidelines are nothing more than a guidance — an indication of the sorts of things that might trigger a federal investigation or prosecution, but not a tightening of the relevant legal standard — why would the administration do this?” He posits four potential reasons:

1: “… guidance documents are often useful insofar as they explicate relevant legal standards and (as the name implies) provide guidance to the regulated community. Such documents can help people know when they are subject to specific legal requirements.”

2: “… the administration hopes to “chill” marginal gun sales.”

3: “… to respond to the political demand for action.”

4: “… issuing a guidance is relatively quick and easy.”

In the event ATF gets challenged in court about any actions it might take as a result of the administration’s executive actions, Adler writes, “The first question a court will consider is whether the ATF document is, in fact, a guidance. The administration will argue that it is, as this is the best way to make a legal challenge go away. But in arguing that the ‘guidance’ is a guidance, the administration will also be conceding that the document has no legal effect and that it does not require anything that is not already required under federal law.”

Click here to see BATFE’s existing brochure, “Do I need a license to buy and sell firearms?”, available as a downloadable PDF.

What worries you most about the proposed Obama gun actions? That you’ll be declared to be “in the business” because you sell a gun to a friend? That the Social Security Administration will refer you to the FBI because someone else is handling your financial affairs? Tell us your concerns in the comment section below.

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Comments (75)

  • Hide Behind

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    I have to set up “Trust” to not so much insure that my decendent will get the weapon at my demise, but to insure that it will not be confiscated.
    But mainly it is to protect my decendent, who for whatever reason is found in posession of it he/they would judged criminals, and lose all Rights
    to own others they had purchaced.
    It is a form of Registration of all firearms to insure legality; serial numbers match ownership records.
    To this day there are untold numbers of family not necessarily heirlooms, but rememberences of past family members yhat never leave the rack except to be checked for cleanliness.
    Every one of those relics, including inoperable, must be placed in trust.
    Here in Sovialist Pacific Northwest each of our three states Ore., Wa and Id. Have variations of these Trust” and there are no provisions for recognizing bordrr crossing of another states wespon so recipients of inherited weapons will find need of legal, and at a gun store co$t, a new “Trust”registration.

    Reply

  • Floyd

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    This Doctor reporting thing is kinda of unclear as a retired EMT and firefighter running towards what ever they where running from I dont need to go in to detail about what I seen or done on the job but in the process of my career I got burned out and suffer from PTSD job related I was forced to leave job and seek the necessary help through the VA – Im not suicidal or violent. just hunt and target shoot and have a carry permit under the new EO does this mean I get reported ans have guns taken away.

    Reply

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