Tickets to the Gun Show

"We all believe in the First Amendment, the guarantee of free speech, but we accept that you can’t yell “fire” in a theater. We understand there are some constraints on our freedom in order to protect innocent people."

As President Obama reminded everyone when he spoke about the executive actions he was taking on gun safety, he taught Constitutional law. His new executive orders on guns weren't created to eliminate the 2nd Amendment, but to regulate it, the way we regulate all the other Amendments (except the 3rd, I don't think anyone has ever brought a challenge to the 3rd Amendment).

The dark horse Amendment

The dark horse Amendment

The President's most prominent step with these recent executive actions was to expand background checks on gun sales. Before these executive actions, only federally licensed firearm dealers were required to conduct background checks after they sold a gun. But dangerous people were still getting guns because not everyone selling guns is federally licensed.

Anyone engaged in the business of selling firearms has to obtain a federal license, but there are loopholes. People selling from their "personal collections" don't need to be licensed to sell guns. This loophole allows an uncle to sell a shotgun to his nephew, or a wife to sell off her husband's gun collection, without obtaining a license.

As with many legal loopholes, the definition of a "personal collection" has widened over time. Today, people sell from their ever-increasing "personal collections" at gun shows, or other private events. These gun dealer hobbyists are not required to be federally licensed, and thus, are not required to conduct a background check on anyone they sell a gun to. And who they sell too is much broader than people in their family, looking for a second hand shotgun.

This is not to say that every person who sells guns at a gun show, or other private event, is unlicensed and not conducting background checks. Far from it. There are many responsible gun salesmen and hobbyists who have obtained a license and do their due diligence conducting background checks on anyone they sell a gun to. Some studies find that as few as 20% of guns are sold without background checks.

But in the age of gun sales over the internet, and unlicensed dealers at gun shows that anyone can walk into, even 20% of sales going without a background check is too high. President Obama's executive orders are the first step in regulating the 2nd Amendment to ensure public safety and freedom. But are they legal?

It's up to the courts. The President's executive orders will face challenges from pro-gun groups who are skeptical of closing the private sale loophole.  But the administration hasn't set any specific quota or threshold for how many guns a person would need to sell to qualify as a gun dealer who would need to be licensed.

Ultimately, it will be for the courts to decide if the President has overstepped his bounds, but the purposeful vagueness of the executive orders makes it likely they will stand up in court, good news for all of us who want to be able to go to the movies/elementary school/bar/small business/restaurant/public road/our own homes/government buildings in peace.

First Published: January 15, 2016