General

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

Do I Need A License To Buy and Sell Firearms?

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.

The Mission of Cheaper Than Dirt!'s blog, The Shooter's Log, is to provide information—not opinions—to our customers and the shooting community. We want you, our readers, to be able to make informed decisions. The information provided here does not represent the views of Cheaper Than Dirt!

Comments (75)

  1. 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.

  2. 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.

  3. My only concern now is if Republicans come into the oval office or take action now and attack the “guidelines” it might give Democrats ammunition to sight exactly what Adler just said about the order being “guidance”. Democrats could say: “it was guidance, now you’re trying to strip away existing gun laws?” Attacking the order might explode in the face of Republicans in the long run.

    1. And Republican cowardice and willingness to go along with Democrat demands is one of the reasons we’re in the mess we’re in right now.

  4. @Mason Hamilton

    While I agree with you about our governments inept ways of doing business, I have to disagree with some the info you put in your post. First off gun fatalities in the United States don’t even come close to the amount of vehicle related fatalities that occur every year.

    Also Alcohol & drug related crime dwarfs gun related fatalities by a huge margin, here in the United States. Now yes I agree that in some instances firearms related crime mixes into the drug trade, but after 20 years in Law Enforcement, I can tell you that Alcohol and Drugs are a much bigger problem in America than firearms are.

    The liberals have an agenda of dismantling the American gun culture, because they think that we the people don’t need guns anymore, but it is not the government’s job to tell me how to live my life. It is they’re to insure that my Constitutional rights are not being infringed on, nothing more. The founding fathers did not intend for the federal government to become a Nanny state, quite the opposite they intended the federal government to basically be a silent partner of sorts to the many states.

    We the people have a duty to give our loyalty to the federal government and follow the laws of the land, but in turn the federal government is obligated to provide US with a Republican form of government, not a Socialist form of government. This is the basis of the Social contract between “We the People” and the government of the United States of America.

    I think more politicians should actually read the Constitution, the Bill of Rights and the Declaration of Independence, before they take office. Oh thats right “O” was a Constitutional professor, or at least that is his claim. Well if that is the case then he should know how unconstitutional his actions are.

    Whoops sorry went off on a rant. Have a great night.

  5. Logically for every gun crime victim, that victim was expecting that our gov’s. crime prevention resources and the legislation that directs it – was going to protect said victim. You can see every every gun violence crime as a failure of our government to provide its citizens the protection they require. You can imaging how much a politician doesn’t like this perspective.

    Trying to take away one of the few methods of effective self-protection from the law abiding citizen – without first proving that the government can protect its citizens – is a rather absurd failure of basic logic. One that most gun owners isn’t going to accept.

    Sadly transportation accidents take about as many lives each year as gun violence, yet it is politically useful to limit car sales. Then there is alcohol, drug abuse, and suicides all take about the same number of lives as gun violence and with some obvious overlapping causalities. Never the less it is politically expedient to focus on gun problems rather than these less dramatic contributing factors.

    We do have gun problems in this country, but our incompetent leadership – presidential and Congress, have actually and effectively multiplied our gun problems by their consistent incompetence and corruption making citizens feel insecure – and logically they buy more guns.

    However, if we solved our theater based multi-billion dollar political electioneering industry and replaced it with competent performance based, fully legally accountable management and leadership – we might make some head way in solving all of problems, including gun violence and terrorism – rather than passing them off to the next election cycle. Until our citizens take action necessary to have better leadership accountability at all levels, not much is going to change.

  6. One last thing. ATF says 4% to 5% of 4473’s that get flagged are a mistake of some sort. The remainder are flagged for good reason – the person lied about something on that 4473. The law specifies lying on a 4473 will result in fines and or jail time. ATF does not have the manpower to track down each flagged individual, at least not right now. Laws are on the books, but not strictly enforced. If politically motivated though, the govt can legally go after you. How? You go on a database. Whose ? The IRS, and Homeland Security. Thats right. How many want to risk being on that database. That is what this is all about. Instilling fear in potential gun owners. This is what is down the road according to one ATF agent friend of mine.

    You already know that the IRS will fine if you don’t have health insurance. How about the 4 or 5 percent who are victims of incompetence or a faulty system? What if the leeway the govt has thru deliberately vague terms is used to snag certain repubs? or political opponents? We know that the IRS has been snagging repub and conservative groups who applied for tax exemption.

  7. When the ATF uses meaningless terms, it is intentional. Lawyers are always intentional. Ive been an FFL for almost 3 decades and a smith longer. This is where we are heading according to the ATF –

    A guy walks into my shop and wants to transfer a weapon to a potential buyer. I cannot transfer a weapon to anyone unless it is on my books first. Say the intended buyer gets flagged by ATF, here its CBI. I won’t be able to return the weapon to the seller without a 4473 and background check on him. If the seller gets flagged, the weapon goes into MY consignment. He does NOT get it back. Is that not gun confiscation?

    How about someone who wants to sell a weapon to me. I will have to get a filled out 4473 and do a background check on him. If he passes great, if not, the weapon will have to go into consignment.

    Grandpa passes on a collection of firearms to his grandson. Grandson wants to sell them and comes to me. Guess what? Thats right. The whole collection might end up in consignment if he is flagged. While on consignment what if it does NOT sell for a year, two years, or at all?

    How about the guy who is a private citizen, unlicensed, sells a firearm thru an online auction. His FFL transfers the gun to the buyers FFL. Buyer gets flagged. Thats right the weapon will be put on consignment. Best the seller can do is hope it sells fast, even at a much reduced price.

    This the road we are headed on, and much of it is already in affect, soon Obamas EO will kick in. This is all from what ATF has told me.

    Another example. Dad wants to pass on his nice Mauser to his son? Nope, not without a dealer transfer.

    What is the objective? No more gun sales between private individuals with out the govt getting involved. This is where every weapon now gets registered. Registration means names and addresses of very gun owner.

    OBama has no problem sending assault weapons to drug cartels in Mexico, but he wants the US unarmed.

    BTW have you seen ATF or any politician DEFINE assault weapon? ATF says it is certain semi-auto weapons. Huh? Thats a legal definition ??? Pick and chose who gets prosecuted.

    Watch for Obama to pull some wag the dog scenario in the next year which calls out the guard, which means first voluntary turn in of weapons, than next it is confiscation. What ever it takes to make the streets safe is what Obama and his lib buddys will say. Who can argue ? Not the repubs. Oh, not your guns ? From your dead fingers you say??? Really? You taking on the US military ? Think again hotshot.

    1. So what! What is the problem with making it harder fir people who should not have guns get them. So what you have to do more paperwork and complete one more step, or God forbid have more inventory. Most guns on the street, from personal experience, are either straw buys, or unregistered for one reason or another. It is about accountability. When there is a violent crime or mass shooting by a criminal or a person with mental health issues we need to know how and where they got them. These laws are not about taking away but making it harder for criminals and those with mental health issues to get guns, and being able to track the guns that are out there. I don’t see the problem with that as a responsible and avid gun owner. You folks need to come back to earth and give all these conspiracy theories a rest. God Bless.

  8. Legal or not, one of the biggest things you need to fear about Obama’s latest executive action is the reduction or elimination of your medical privacy rights. Via the already illegal and unconstitutional Obamacare, Obama has once again illegally altered the law without the involvement of congress, and struck down HIPA laws, also without the involvement of congress. Now, you could find yourself on a “no-buy” list, or have law enforcement trying to confiscate your guns because a doctor decides you are not competent to have them. There is no trial, no adjudication, no appeal that we know of. It will be like the “no-fly” list in that you don’t know how you got on it, and don’t know how to get off of it. Obama has exercised constitutional powers NOT delegated to him in the Constitution, but NO ONE has stopped him. Law means nothing if there’s no force to back it up.

  9. Regarding what Obama “says”, lets put this in perspective.Remember -” if you like your doctor, you can keep him, if you like your insurance you can keep it, I guess those shovel ready jobs weren’t as shovel ready as I thought”. Oh yeah regarding the Benghazzi coverup, “there isn’t even a smidgin of corruption”. And the latest – I am not going to take your guns away…

    Libs been nibbling around the edges of gun manufacture, gun sales and gun ownership for decades in order to disarm the country. Remember when Clinton wanted reloaders to fill out a 4473 and get a background check to buy powder. He also tried to stop import of surplus (military) ammo. Than the import of surplus of weapons. None got traction. Obama has banned surplus ammo and surplus weapons from being imported like the M1 Garand, M1 Carbine and so on. How about 100% or 200% tax on ammo? Putin has been tinkling down Obamas back for almost 8 yrs so Obama bans import of all Russian AK weapons, parts and parts kits and accessories. Course Serbs and Yugos make great AKs, so no big deal. Right ? Wrong. He can do an EO banning Serb or Yugo AK’s anytime.

    Why does Obama and his fellow libs and lefties and socialists keep trying to disarm the US? Because they are doing it little by little. Safe firearm is the mantra now. Guns that read fingerprints, now that’s safe right? Only one person can use it. Hm…smart. Course that kind of technology will cost more than a NASA hammer. How about ammo that is registered to the owner? That makes guns safe right? Course $10 a round makes it a little pricy for plinking. No lead bullets – that makes guns safe right? Obama shut down last year the last lead smelter in the US thru the EPA. And it goes on and on and on. Making guns too difficult sell/buy, too expensive to shoot, no place to practice, too difficult to reload, banning surplus weapons and ammo and so on. Nibbling around the edges. When the ATF says suggested or recommended, that means they can pick and chose who gets prosecuted, who gets made of as an example to scare off everyone else.

  10. No big suprise here…most of the liberal progressive anti-gun agenda has been meaningless for quite some time. We just get to hear more of it around electinn time…keeps our minds off of other stuff they’re doing that they don’t want us to notice.

  11. It’s a basic human right to protect/defend one’s self so Barry can stick all his anti-gun (read anti-Constitution) rhetoric where the sun doesn’t shine.

  12. The primary purpose of these Executive Orders is to intimidate the gun owners of America. Opinions by law professors, and even members of Congress, does nothing to help me when I sell a gun to my shooting buddy, and the Feds arrest me me for ‘dealing’ without a license. Which law professor, and which member of Congress, are going to help me with hundreds of thousands of dollars in legal fees, other costs, to fight the Administration to the US Supreme Court? Congress does nothing other than make a speach and beat their chest, then go back to their cocktail parties. Did your Congress representative do anything last year when Obama issued the first round of Executive Orders on Gun Control (now called ‘Gun Safety’). The answer is NO! No wonder that Congress has a lower approval rating than the president. Maybe the NRA or NSSF will do something positive to help out gun owners, but don’t count on Congress or Law Professors.

  13. if you are a veteran they will say you have PTSD and are therefore NUTS and disqualified. Especially true if you are a combat disabled veteran.

    any other “minor infractions of the law”, such as “you were speeding therefore you are a CRIMINAL”.

    Remember, the domestic violence law was RETROACTIVE also.

    Whose to say that your parking ticket might not be RETROACTIVE.

    sounds funny or extreme I know, but once the camel has his nose in the tent he is coming in!!!

    1. Bob
      You are talking about misdemeanors not felonies
      As far as the PTSD situation there is nothing that can be done UNLESS a JUDGE says you are mentally incapable of proper decisions
      The Vets got in trouble when they had the court proclaim them mentally incapable to handle their own financial affairs and or care for themselves
      In that case they get a court ruling and that is used by ATF/FBI to restrict gun ownership
      To the average Vet who has PTSD and still manages his life on his own no issue they are not determined by a COURT to be at issue
      The ONLY thing that this nonsensical EO “talks” about is opening the HIPAA regulated files to integrate them with the FBI database and that is NOT going to happen now or in any near future
      So this article is correct this was all about crying on TV to jack up media ratings.
      Business as usual NO changes were ordered (nor could they be since he can’t change laws only issue his suggestions as to how to use them)
      Dr D

    2. @ Dr. Dave,

      I think it very important to elaborate so folks can better understand how severe the VA reporting into NICS background system has grown under the Obama anti-gun administration.

      It does not matter what the veteran’s disability is, whether it be PTSD, wheel chair bound, missing limbs, cancer, or plain old age – regardless of the disability and without regard to their mental state, if for ANY REASON that veteran is assigned someone to manage their affairs (known as a fiduciary), they MUST automatically be entered into the NICS background system and CANNOT possess or purchase a firearm – PERIOD!

      The assignment of a veteran’s fiduciary is rarely done through the courts and therefore no “adjudication” ever occurred, yet these vets are still denied their Right to bear arms.

      Most people are unaware that the VA has a voluntary Fiduciary Program with brochures and all which is offered to Vets as a feature to help manage their benefits. Because it is offered in a way to appear as an extra benefit, most eligible vets willingly sign up for this free Fiduciary service without ever realizing it automatically strips them of their Right to bear arms.

      It should be noted that States cannot be compelled by law to submit records or participate in the NICS background check system because it is a purely Federal system – however, because the VA is a federal administration which falls under Obama, they MUST report these records. Therefore, ALL Vet’s that have a fiduciary, whether voluntarily or involuntarily are mass reported into NICS.

      Given that 99% are voluntary Fiduciary records, no adjudication occurred, and that makes such entries unlawful. Yet it is going on at the direction of Obama as we speak.

      Obama’s next federal phase to be rolled out is to do the same to all Social Security recipients that also have assigned Fiduciaries. This led to last year’s Congressional inquiry to the Social Security commissioner which at least prompted a temporary stop to such NICS reporting. However, Congress has done little if anything to correct the 177,000 plus veteran records that continue to spill into the NICS system at the hands of Obama.

  14. Everyone responding has made a good point. The laws surrounding gun ownership, transfers, possession, and carrying are a quagmire and are only getting worse. The Big Zero in Washington clearly has no idea what he is doing to tear down our democracy. We must ALL support organization’s like the NRA or National Association for Gun Rights (NAGR) because our small contributions will be aggravated to fight this type of poorly informed, small minded thinking. Together WE SHALL OVERCOME !!! Individually we are far less effective.

    1. No, he knows EXACTLY what he is doing. It is intentional.

      And, by the way, we are not a democracy. We are a constitutional republic, or at least we were until the Big Govt criminals starting with FDR destroyed it.

  15. In another ATF document, still posted on their website, titled “Most Frequently Asked Firearms Questions and Answers” [found on the ATF website at http://www.atf.gov/file/3871/download ], the ATF quotes verbatim the applicable portion of the law [18 U.S.C. § 921(a)(21)(C)] to answer the question “At what point should I obtain a Federal firearms license (FFL)?” This ATF guidance includes all of the private collection sales not mentioned in the new guidance. Here is the text of applicable part.

    “Federal law requires a Federal firearms license if you are engaged in the business as a firearms dealer, manufacturer or importer. A person is engaged … [as a dealer in firearms if that person]… devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

  16. This most recent action by O. is just part of the conspiracy he denies. It’s death by a thousand cuts (aka”the frog in the heating water effect”). They pass a law or enter an executive order. That doesn’t get the desired result, so more legislation is enacted or another E.O. is entered. Each one tightens the noose a little tighter. Soon they have arrived at the point they desire. The public is now softened and ready for the final cut-They vote to amend the Constitution to prohibit private ownership of firearms.Don’t let it happen. Vote for the conservative candidate.

    1. Yes, you are correct. Plus, they appoint corrupt judges who willingly allow the constitution to be repeatedly and flagrantly violated.

  17. I have to add to what Michael says. I moved from California because I saw the deep rooted effects of a decades long plague infecting the laws, college campuses, news media and government structure of this wonderful country of ours. The plague is defined as “Progressiveism”. It’s intention is to destroy this government and replace it with an “Agitated” Socialism never before seen. The only fear of these “Progressives is the armed citizen. Take away that opposition by lies and deceit and say goodbye to your Constitutional Rights. They can only succeed by lying to the public. Therefore, don’t believe that this is the end of their attempts toward tyranny.

  18. In your opinion 1) if a person goes to an FFL retailer to sell his firearm to that licensed entity, would the seller have to have a license to sell, 2) if a person wants transfer/sell their firearm to their licensed child, would the seller have to be licensed to sell? Crazy to have to think that way, but seem to be legitimate questions under this gray sky of executive “guidance”. Thank you.

  19. If all of you think you have it bad, please try moving out here to the Socialist Republic of California. Every time we turn around another Socialist Liberal is trying to attack our 2nd Amendment rights. Last year it was Firearms restraining Orders, this year it that Tard Gavin Newsome introducing a ballot Initiative. This one is a will outright BAN all magazines that hold more than ten rounds, it will make it where a person as to have a permit to purchase ammunition, it will make buying ammo on the internet illegal, it will make it illegal to give ammo to anyone else. Thats just the the tip of the iceberg… It is sincerely crazy out here.

    1. Honestly – I don’t feel sorry for people in California WHATSOWEVER. They have ALLOWED the kind of BS happening there to continually go on. Those who don’t like how tight the stupid laws get, move to another state and percolate the same BS in that state. I have seen it ALL TOO often. People who are TRULY against their rights being taken away and are not some half baked liberal should LEAVE California and let it rot. But DO NOT bring any of the same half baked stupidity in California with you! We should collectively be pushing the stupid liberals with their “lets take everyone’s rights away except ours” attitude and FORCE THEM INTO California and OUT of every other state.

  20. This is O’bummer going after political cash for the Democrats. He throws out some silly executive action that don’t really change anything, but what it does do is cause the Republican Senate to fight with him. As soon as the Senate refuses to fund any of this nonsense O will say, “Oh look I’m merely trying to save lives and the mean GOP is fighting me.”

    Feinstein is doing the same thing, introducing the “Assault Weapons Ban of 2015.” She knows it will never get through the Senate and as soon as it gets shot down the Democrats will cry about how evil the GOP is…

  21. Has President Obama managed to insist on gun sales, I ask this because if I want to buy a nice looking pistol or rifle does the seller have to do a background check because I have known instances where whoever handles the background at the FBI I presume that is the agency doing background checks, it has taken as long as one week because they are so busy and I go to gun shows all around in Texas, Kansas, Missouri and Alabama plus the State I live in Oklahoma.

    1. @ Charlene Edwards,

      Try using a period every now and then; someone may have been more willing to answer you sooner if they could understand what you wrote.

      If I’ve deciphered your questions correctly, I think the first answer is NO. While Obama does “insist on [limiting?] gun sales”, his actions lack the authority to make an impact on the delays you claim to be experiencing.

      In regards to your next question asking if the seller has to do a background check – that depends on if the seller is a licensed dealer or a person making a private sale. If you are buying from a private seller there is no federal requirement for them to conduct a background check on you prior to selling you the weapon. However, if the seller is a licensed dealer, they MUST put you through the federal background check (NICS), regardless of where the sale occurs. That includes gun shows.

      Such confusion for some gun buyers at gun shows is due to the combinations of persons running each booth. Some booths are run by private sellers and other booths are run by dealers. You will not have to do a background check if it is a private seller’s booth, but you must go through a check if it is a licensed dealer’s booth. It is usually easy to tell the difference, or you could simply ask.

      Keep in mind that some States have recently enacted laws requiring background checks by ALL sellers at ALL gun shows regardless of whether they are private or licensed. Of course this has the effect of pushing private sellers out of selling at gun shows; which was the desired result by the liberal anti-gunners that pushed for such laws in the first place.

      As for your final question, you presumed correctly that the federal NICS background check system was implemented by the FBI. However, it is actually run by contractors under FBI control. As for your “week long” delay on your background checks – while it may appear to take a week, it is actually 3 days. In reality the FBI’s 3 days is really 5 days, but I will explain more on that later.

      But more important is that you had any delay at all, as this is cause for great concern because it indicates your name is in the NICS system – which is something you really never want, and is considered quite abnormal. Anyone experiencing this should immediately submit a request for investigation to have your name purged from the NICS system, assuming it is in error.

      Otherwise, here is how a normal gun purchase should go down: When a dealer performs a NICS check the result is usually instantaneous and allows you to make the purchase immediately right then and there. However, a delay may occur if your name appears in the NICS system for any reason. By law the FBI will initiated a delay and are then given 3 days after the day you submitted your NICS check to further investigate the reason for such a delay.

      If at the end of the third day if the FBI still has not completed their investigation, the gun sale must be allowed to proceed on the following day; so in total that come out to a 5 day delay to you.

    2. Agree. When I buy a gun from a FFL it takes 10-15 minutes for me to fill out the paperwork and have the Background Check run. If it is taking you as long as you cite except on one or two instances something is amiss. Maybe they think you are in the business? I’m not an Obama fan but I agree with this piece of his action. There are numerous booths at gun shows I go to that are obviously in the business of making money from gun sales and not private individuals or Collector’s. Tbey aren’t CFL’s because they don’t run Background Checks and some of them have large numbers of guns for sale, many brand new in the original box. Obama isn’t making new law. He’s just sending a clear signal he’s going to start enforcing the law that already exists, probably because he realizes the heat on this is increasing and people might realize there is no Gun Show Loophole if existing law is enforced. And he’s making it sound like he’s doing something special when the same result would happen if he just did his job. Read the legal opinion that is a hot link in the article. And he’s actually doing some people a favor that think they can run a gun selling business without being a FFL by maybe making them go ask their lawyer before the ATF and IRS show up at their doorstep. Penalities are pretty severe up to $250k and 5 years in jail. Many Federal crimes have a significant minimum penalty and that excludes if Heaven forbid, the Justice Department decides to make an example of you, which I think will happen soon.

    3. @ Tom Walker,

      Just for the record, I am advising folks in order to help ease their burden as they make their way through a system that really has no lawful authority to exist. As the Supreme Law of the Land, the Constitution clearly states to the federal government that they are barred from infringing on our Right to bear arms in any way.

      Simply put, absolutely none of these laws which create gun licensing, FFLs, supposed loop holes, NICS checks, registrations, and all other gun limitations – have never had the legal ground to exist. All our other laws designed to prosecute murder and other dangerous crimes already provide severe penalties which cover anything a person could ever do unlawfully with a gun.

      That said, were the current gun process actually lawful, I might agree with much of your views within that particular context. However, as it is, I have committed all of my adult life to upholding the true Laws of this Land which do not allow for any type of lawful gun control.

      Therefore I invite you to reconsider the depth and time you use to ponder gun matters which shouldn’t even exist, and instead redirect such brilliant resources by focusing your time as an advocate towards the real Laws of this Land to help fight such tyrannical lawlessness that has been cloak as real laws.

    4. G-Man,
      Thank you for the advice sorry my comment I wrote yesterday was so badly written.
      I did write a rather lengthy reply to you but when I sent it I got a notice saying the CAPTA was wrong, when I went back my lengthy comment was gone, which tells me in future to copy what I write to a word pad document. So I guess that saved you reading a long reply. But your comment did give me the idea to contact NICS and find out if there is any problem with my identification, after all mistakes have been well known to be made by the FBI such as Ted Kennedy being put on the no fly list and he was a Senater and just one of many that should not be on that list.
      Thank you again.
      Charlene E.

  22. When I was watching the news conference and saw Obam’s tears while he was speaking one thought came to mind. All I could think was that he and his sidekick Eric Holder must have bought some gun maker stocks before making the announcement. Those were tears of joy knowing how much money he just made for himself by making the press announcement. Truely pathetic but completely in character.

    1. Bill, YOU GOT IT! Follow the MONEY. Many politicians buy stocks at crucial times. Why? Because they have inside information. Why do Bill and Hillary smile so much as they lie to your face? They are happy knowing that they can lie to idiots, get away with it, and get tons of money for themselves from all of us. Very sick and sad. But that’s is what makes them happy. Taking money from idiots. Unfortunately, some intelligent people get hit with the bill via new laws and regulations.

    2. I don’t think I saw tears from Obama or Holder for those murdered when Fast and Furious, under the auspices of the DOJ facilitated the illegal purchase of hundreds of guns destined for Mexican drug lords.

  23. Does a Vet that is getting a disability check from the government for PTSD getting flagged by the FBI and ATF for a mental disorder?

    1. @ Robert,

      The official answer is NO. You must have been “adjudicated as a mental defective” to be placed in the NICS background system. Receiving ongoing medical treatment and compensation for a condition sustained while in the service of your Country is not considered an “adjudication”.

      However there are legitimate fears that such unauthorized reporting of these Vets may by going on under the discrete direction by the Obama administration. It will take electing a Republican president to look into this and undo all that Obama has done.

  24. My concern is that, if I leave my guns to a family member in a will, will that person have to pass a background check? Will my will thus be considered a “firearms business?” And what happens to the guns if the person to whom I willed them is found to be ineligible (for some unforeseen reason) to have them. I view this as one way in which guns can be confiscated.

    1. It is a round about way of confiscation and has been discussed by the Obama admin. I, having thought about the same thing did the following: First off my father, my son and myself are all permitted to purchase or carry. My folks created a Trust instead of a Will and my fathers guns belong to the trust. I am named as the executor of the trust and his guns are specifically left to me in the trust. I will do the same thing with my guns and name my son as executor of my trust and specify him as the owner of of the guns in the trust when i die.
      It’s not fool proof because the government is corrupt and can do pretty much what it wants. However, placing gun ownership in a trust, specifying who is in charge of the trust and getting everyone involved permitted s about as good of protection as you can get for now.

  25. The concern is more than the legality absolute effect, it is the issue a POTUS would blatantly move against the Constitution in any shape or form. Obama has stirred the pot, creates unnecessary societal division and unrest. And does so with outright lying. The psychological effect on a Nation is irresponsible to say the least.

  26. What if a Dr reports someone to the FBI? Then that person wants to buy a gun and undergoes a background check. What happens? Does the FBI request the persons medical records? Is the person required to undergo a psychological examination? What criteria, other than a Dr’s opinion is required to determine if some is too dangerous to have a gun?

    1. @ John, (I write the following with 33 years of Federal Law Enforcement experience.)

      A doctor does not directly report someone to the FBI for the purpose of flagging them in the NICS background check system. There is not even a mechanism to allow that, and it would violate federal medical privacy laws if a doctor ever tried it anyway.

      If a person does get reported into the federal NICS for mental health issues, it would be done by the State government rather than an individual doctor. Here is how it works:

      According to federal law, the key phrase to look out for here is, “adjudicated as a mental defective”. Such action requires much more than a simple call from a doctor and instead involves formal proceedings “by a court, board, commission, or other lawful authority” prior to it ever being qualified for reporting into NICS.

      In other words, you would more than likely be well aware you had undergone such serious proceedings that could lead to your entry into NICS by your State government. Whether it be long or short term, just getting psychiatric help for depression or even being placed under forced observation for something like suicide does not qualify for entry into NICS.

      That said, even if you are actually “adjudicated as a mental defective” you may still never be reported into NICS because it is up to each State to report such information and it is purely voluntary. The reason is because the Constitution prevents the federal government from having the authority to force States into such reporting if they don’t want to do it.

      Many States refuse to report medical information because they have their own laws which are stricter on medical privacy than even the federal law.

      One final note: For those States that do report into the federal NICS, your actual medical records are never submitted. It is only your identification information that gets entered on file and then coded as “adjudicated mentally defective”.

  27. This is the second time obama has taken meaningless action to, as he said, “strengthen gun laws”. And both times, his actions were not much more more than restating existing laws, even though his rhetoric beforehand made it sound as though he planned to actually create new laws by “executive order”. So, it would seem that his intent is only to get us worked up and excited. Obama just wants to incite, inflame, provoke, etc., in hopes to create civil unrest so that he can declare martial law – which suspends our Constitution. Of course if he does that, he will find out quickly where all 350,000,000 (or more!) of our guns are because they will all be well aimed.

  28. It that’s 218 Votes in the US House of Representative to Impeach a President and 290 Vote to Overturn an Executive Order by a Sitting President. As of 20 Hours Ago, there are ONLY “THREE” Republicans ready to Vote against the “ACA”. Forget It, it’s a “Pipe Dream” with BAD POT…

  29. Our Virginia state gun rights organization had a gun friendly attorney look at Obama’s blathering, and he came to the same conclusion. Most of it is just noise, with no appreciable effect on anything. His order that checks on the the NICS is a good thing.

    On the other hand, the portions demanding closer cooperation between state mental health practitioners and the ATF is a bad thing because it threatens to take away an individual’s Constitutional rights with no due process.

    But in the end, it is a political maneuver intended to make Obama look “Presidential” to his followers, who are in the end mindless Liberals. The other side effect is to fire the antis up because they think he actually is doing something constructive.

    Which we all know he is incapable of doing.

  30. If someone handling your financial affairs is construed as negative than every rich or well off person will be on the list. I doubt if Malcolm Forbes or someone similarly situated takes the time to write a check to the utility company, fill out an envelope, and drive it to the post office.
    Some people travel on the road a lot and have an accountant take care of such business. This guideline is very flawed.

  31. The most important concern here is that our US Congress makes the laws not the POTUS. That is spelled out in the SUPREME law of the land, the US Constitution. The US Congress has voted these actions DOWN three times. BUT Obama is opposing the vote of the Congress who are elected by the people every two years.

    How would Obama react if he vetoed a bill passed by Congress and the US Congress instituted that law in spite of his veto.

    Obama’s actions are traitorous and those of one who seeks to be King.

  32. There are two parts of O’bummer’s proposals that could affect gun owners negatively:
    1. Get information from the Social Security Administration on mental health issues for the purpose of disqualifying some people from owning a gun. Net effect: this is DANGEROUS, as it can strip people of their right to own a gun WITHOUT DUE PROCESS. A very tiny minority of those with mental health issues are dangerous. Just because you let someone else balance your checkbook doesn’t mean you should not be able to own a gun, but that’s what O’bummer is doing. O’bummer is casting a huge net for the purpose of catching what actually boils down to a handful of people.
    2. Change HIPAA laws to allow states to share “certain” information from a person’s health records. Net effect: this is DANGEROUS, as it can strip people of the right to own a gun WITHOUT DUE PROCESS. No cookie cutter, bureaucratically controlled, examination of a person’s medical records should be used to strip someone of any of their rights without DUE PROCESS!

    1. I agree he has violated our Constitutionally guaranteed rights. Bush did the same thing. The NDAA and Patriot Act come to mind. The point is it doesn’t matter if it’s a D or R in the White House. They all follow the same script.

    2. While I believe there’s plenty of probable cause to impeach Obama, remember that while the House brings charges of impeachment, a trial would take place in the Senate, where the Democrat minority is still large enough to prevent the 2/3 vote a conviction requires. And regardless of the evidence, Democrats will not remove this Democrat POTUS for any reason. FOR. ANY. REASON. Think about that for a bit . . .

  33. Sitting back in a country where gun ownership is neither encouraged or discouraged, I find it fascinating at your Liar & Thief’s tearful rant about felling sad for those killed at Sandy Hook, but little mention of those killed by terrorist in California, or any place. He turned the deaths of innocents into a circus act, and managed to shame America in the eyes of the world.
    WAKE UP!!, America,this man has no love of America,The Constitution, or any he feels threatened by; namely GUN OWNERS. His Executive Action will have little, if any impact on criminals and terrorist who do not obey civilized law, anyway. I do see that it will put more money in the pockets of gun manufactures and gun shops, as Americans flock to buy more guns and ammunition, before Obama takes the next step in his march to make America safe for criminals and terrorist, by outright door to door confiscation as happened in Italy and Germany just before both countries declared defacto martial law on their own citizens.

  34. Though this is yet another impotent action as we’ve come to expect from Obama, there is a very real possibility this one may trigger some pain.

    In my career experience I have seen more than my share of overzealous anti-gun type agents and prosecutors that really pushed the edges of the federal legal definitions to get arrests and begin prosecutions.

    I’ve seen cases I never thought would fly, and yet these federal prosecutors still managed to get convictions. Most of the time they don’t win the full sentence they sought, but they still sent people to prison on short sentences – enough to ruin their lives and ensure they can never own a gun ever again.

    My point is – I could see these same overzealous agents and prosecutors now taking Obama’s so-called new guidance and using it to lay additional groundwork for prosecutions against hobbyist and collectors that they previously would have marginally considered in the past.

    It doesn’t matter if you finally beat the rap; it is the cost to your reputation and livelihood during the process that will hurt you the most. That is really all they anti-gun movement wants, and Obama just provided the tools for them to do it.

    The only way to walk this one back is for Congress to finally grow a pair and pass legislation and then a veto override on a well-defined bill that specifically addresses every aspect of gun sales; rather than leaving it up to Obama and his ATF to make up their own rules whenever it pleases them.

  35. If you give an inch they’ll take a yard. His attempt to look relevant in gun control could serve as a catalyst for uninformed Americans to believe that the country wants more gun control when the opposite Is true.

  36. What makes the latest EO really meaningless, is The Armed Civil Disobedience of Non-Compliance.

    DEFY-DECEIVE-EVADE-RESIST-SMUGGLE

    Your move, tyrants. Choose wisely.

    1. @Michael:
      According to Merriam-Webster, the following is the full definition of “insurrection”:

      “an act or instance of revolting against civil authority or an established government”

      Also from Merriam-Webster:
      Synonym Discussion of insurrection

      rebellion, revolution, uprising, revolt, insurrection, mutiny mean an outbreak against authority. rebellion implies an open formidable resistance that is often unsuccessful . revolution applies to a successful rebellion resulting in a major change (as in government) . uprising implies a brief, limited, and often immediately ineffective rebellion . revolt and insurrection imply an armed uprising that quickly fails or succeeds . mutiny applies to group insubordination or insurrection especially against naval authority .

      Unconstitutional, intolerable acts are NULL & VOID, and carry no weight as law, regardless if they are upheld all the way up to a rogue, activist SCOTUS. YOU need to learn and understand what we are doing. We don’t want to overthrow the government, we simply want to enjoy our God given rights and be left alone. Without voluntary compliance, the gun control (and all other) laws are useless. That’s why the anti-gun hoplophobes keep proposing more and more gun control, because criminals ignore the laws, and they hope to get voluntary compliance from formerly law-abiding citizens. We now like to be known as “peaceable citizen” or Patriot. We committed no real crime, and were made felons simply by the stroke of a tyrant’s pen. If they come to our door with force, we shall respond in kind. Because unlike a guerrilla, revolutionary, or insurrectionist, WE DO NOT FIRE FIRST, but we will certainly return it.

      Armed Civil Disobedience is not a “revolt”, it is ignorance of unconstitutional intolerable acts.

      We can agree to disagree, because one man’s insurrection is another man’s fight for freedom and liberty.

    2. @ Galaxie Man

      On Slight Problem, Webster Dictionary was First Published in 1826. Definitions used in US Constitution, was published in 1690 and Bill of Rights, in 1765 which is based on the 1690 Oxford Dictionary Publication. Treason and Insurrection have SAME PUNISHMENT!

    3. Then file your charges and lead the raiding parties to round us up…..OR STFU!! Just be prepared to NOT have an easy go of it. Those of us Patriots you are so ready to condemn to death to please your puppet masters WILL NOT go willingly to the gallows. By our (in)actions we have already shown a commitment to principles that have the tyrants quite frightened into SILENCE. I have no problem with being left alone, at the moment. But if blood is to be spilled to disarm peaceable citizens, the blood of tyrants WILL be on the ground as well.

      We can debate definitions and their dates all day long. If you want to talk about treason, I have some REAL examples for you…Barack Hussein Obama, Hillary Clinton, John Kerry, Susan Rice, Bowe Bergdahl, Julian Ossange, Edward Snowden, Djokhar Tsarnaev, etc. After they are all executed for treason, then we can debate whether The Armed Civil Disobedience of Non-Compliance meets the test according to Michael.

      I suspect you are more than willing to live on your knees, taking what tyrants tell you freedom and liberty is….I am not. I will die on my feet, knowing true freedom and liberty, as a free man.

      But that’s just crazy talk, right?

    4. Just wondering here fellows…since what we write on this blog purportedly hangs out there forever who else will read it? Will some Fed. agent be clipping our posts some time in the future and putting them in a file entitled “too dangerous to own a firearm”. Just wondering.

    5. If the feds were not onto the San Bernardino shooters and others, I doubt the will be clipping our comments. ~Dave Dolbee

    6. @ Richard,

      I find it interesting whenever I read comments about our posts being monitored. True, posts are being monitored, but not in the way many think. It is amusing how many presume a federal agent sits at a terminal scouring through random forum comments to be flagged into some collection to be investigated.

      The fact of the matter is – the constant barrage of never ending Internet traffic is so incredibly overwhelming that no human could ever keep up with such a task. Instead it is all done using specialized hardware servers and software designed to monitor and filter Internet traffic as it flows in real-time.

      Such information is data mined for specific key words and phrases which are only placed into storage for further review after meeting predetermined conditions developed into profiles. More specifically the results are compiled using constantly evolving algorithms programmed to look for trends that meet predesignated criteria which are then given priority levels and then assigned for further human analysis.

      One would have to be constantly posting some pretty fantastic stuff to even qualify for entry into a set profile worthy of an agent’s attention. Even then, the manpower is limited for reviewing such low priority profiles and even less of a chance it would warrant being assigned for further investigation.

      Trust me, our forum is quite healthy and immune to government monitoring and scrutiny when compared to the Internet traffic that must be monitored in order to thwart the ever evolving real-world terrorist activities linked to ISIS and Al Qaeda networks.

Your email address will not be published. Required fields are marked *

Time limit exceeded. Please click the reload button and complete the captcha once again.

Your discussions, feedback and comments are welcome here as long as they are relevant and insightful. Please be respectful of others. We reserve the right to edit as appropriate, delete profane, harassing, abusive and spam comments or posts, and block repeat offenders. All comments are held for moderation and will appear after approval.