Explore The NRA Universe Of Websites

APPEARS IN News

Bloomberg’s Everytown Encourages Biden to Pursue Unlawful Executive Gun Controls

Monday, December 14, 2020

Bloomberg’s Everytown Encourages Biden to Pursue Unlawful Executive Gun Controls

According to the December 10 report from the New York Times, Michael Bloomberg’s anti-gun organization Everytown for Gun Safety is pushing Joe Biden to enact a raft of gun control by executive fiat. As much as Everytown and their would-be autocrat benefactor might wish, the U.S. Presidency is not a dictatorship. The executive actions Everytown contemplates implicate the Second Amendment rights of law-abiding gun owners and are not moored in a credible reading of federal statute.

The article noted that the group has targeted three areas for executive action. Everytown is urging Biden to further restrict the private transfer of firearms between non-dealers, force Federal Firearms Licensees (gun dealers or FFLs) to notify the FBI whenever they complete a firearms transfer following the FBI’s failure to complete a background check within three days, and further regulate unfinished firearm frames and receivers – sometimes referred to as 80 percent frames or receivers.

Federal law (18 U.S.C. § 922(a)) provides, 

        (a) It shall be unlawful--

            (1) for any person--

                 (A) except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of                                  importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or                          receive any firearm in interstate or foreign commerce; or

Therefore, a person may not “engage in the business” of dealing firearms without a Federal Firearms License. FFLs, of course, are required to consult the FBI’s National Instant Criminal Background Check System before transferring a firearm to a non-dealer. 

The term “engaged in the business,” as it pertains to firearms dealers, is defined by statute (18 U.S.C. § 921(a)(21)) as, 

a person who 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;

Notice that the language does not contain a specific number of firearm sales or transfers that triggers the definition of “engaged in the business.” The language in the definition was carefully crafted to exempt individuals selling and trading firearms in and out of their private collections, no matter the frequency or volume. Rather, it is when a person sells firearms “as a regular course of trade or business with the principal objective of livelihood and profit” that a person must obtain Federal Firearms License.

Under this language, an individual who sells 20 firearms in a year with “the principal objective of livelihood and profit” would be required to become an FFL. However, an individual who sells 50 firearms in a year with the principle objective of enhancing their collection would not be required to become an FFL. The definition creates a distinction between commercial and private conduct, rather than various volumes of transactions.

Enacting this statutory definition of “engaged in the business” was a key component of the Firearms Owners’ Protection Act of 1986. Prior to FOPA, BATFE had targeted private individuals at gun shows who sold a few firearms out of their private collections on multiple occasions.

Despite the clear language and legislative history of 18 U.S.C. § 921(a)(21), Everytown is reportedly pushing Biden to place an arbitrary five firearm per year cap on private sales. Everytown’s proposal is particularly egregious given the recent history surrounding this issue.

President Barack Obama’s administration acknowledged that they had gone as far as unilateral executive action would permit on firearms. In late 2015, White House Deputy Press Secretary Eric Shultz told reporters that Obama “has asked his team to scrub existing legal authorities to see if there's any additional action we can take administratively.” 

The Obama administration looked into further restricting the private transfer of firearms by executive fiat. Understanding that they did not have the authority to place a cap on the number of private transfers a person may engage in, the administration issued a 15-page guidance document that explained the relevant federal statutes and regulations concerning firearms dealing and summarizing its view of the controlling case law. Given the nature of the issue, one would expect there to be a plethora of Obama-era documents available through the Freedom of Information Act on this topic that would make a policy U-turn politically unpalatable and provide compelling evidence for any potential litigation.

In fact, the statutory language and legislative history is so clear that Biden would not have the authority to enact Everytown’s proposal that Bloomberg anti-gun mouthpiece The Trace has admitted as much. In June 2018, the Bloomberg organ whined, “Under the Gun Control Act, the ATF had wide latitude to pursue illegal dealing charges against unlicensed sellers. FOPA protected private dealers by narrowing the definition of just who qualified as being ‘engaged in the business’ of selling guns.

At present, federal law (18 U.S.C. § 922(t)) provides that an FFL may transfer a firearm to a prospective buyer after “3 business days (meaning a day on which State offices are open) have elapsed since the licensee contacted the [National Instant Criminal Background Check System], and the system has not notified the licensee that the receipt of a firearm by such other person would violate federal law.” This provision ensures that the FBI is not empowered to indefinitely delay a gun sale, either for an inability to conduct a background check or out of malevolence. As NRA-ILA has explained, this three-day safety-valve provision is vital and its elimination would turn the right to keep and bear arms into a privilege.

The Bloomberg proposal to force FFLs to notify the FBI whenever they complete a firearms transfer following the FBI’s failure to complete a background check within three days is an obvious attempt to intimidate FFLs into not transferring a firearm to individuals burdened by FBI’s inability to perform what is supposed to be an “instant” background check. This would curtail the ability of many individuals who routinely experience a lengthy NICS to access firearms at all.

There is no statutory language authorizing this requirement. Further, the proposal is unnecessary given current federal law enforcement practice. In the rare instance where a firearm is transferred to an individual following the three-day period and the FBI subsequently determines that the individual is prohibited from possessing firearms, ATF will then retrieve the firearm.

Concerning unfinished frames and receivers, the current federal statute and regulations are clear. Federal law defines a “firearm” to include “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive” and “the frame or receiver of any such weapon.” In the Code of Federal Regulations (CFR), “firearm frame or receiver” is further defined as “That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.”

In order to treat unfinished frames and receivers as firearms, ATF would be required to broaden the definition of “firearm frame or receiver” in the CFR. Such a change is inadvisable and should at the very least require a formal rulemaking under the Administrative Procedure Act.

By targeting the materials Americans use to make their own firearms, Everytown and Biden would be striking at the core of the Second Amendment right in a manner that has no basis in the text, history, and tradition of the right. Since long before the founding, Americans have enjoyed the right to make their own firearms for personal use without government interference.

NRA-ILA will continue to monitor any attempts to enact unlawful gun control through executive action and stands ready to challenge such measures should they arise.

TRENDING NOW
Did Biden Call Most American Gun Owners Sick?

News  

Monday, December 5, 2022

Did Biden Call Most American Gun Owners Sick?

There are few things in life that one can truly count on. Of course, there’s the old saying about death and taxes, and we know the sun will rise in the East and set in ...

Oregon Agrees That Delaying Measure 114’s Permit-to-Purchase Requirement Is Necessary After Challenged in NRA-ILA Backed Lawsuit

News  

Monday, December 5, 2022

Oregon Agrees That Delaying Measure 114’s Permit-to-Purchase Requirement Is Necessary After Challenged in NRA-ILA Backed Lawsuit

Last week, an NRA-ILA backed lawsuit was filed challenging Oregon Measure 114, which created a mislabeled permit-to-purchase a firearm and banned the possession of magazines capable of holding more than 10 rounds of ammunition. The lawsuit also ...

Trudeau’s Real Agenda: Ban Legal Firearm Ownership Altogether

News  

Monday, December 5, 2022

Trudeau’s Real Agenda: Ban Legal Firearm Ownership Altogether

How appropriate is it that “gaslighting” (“the act or practice of grossly misleading someone especially for one’s own advantage”) is Merriam Webster’s word of the year for 2022.

Recent ATF Action Shows Need for Suppressor Reform

News  

Monday, March 14, 2022

Recent ATF Action Shows Need for Suppressor Reform

As we reported last week, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) denied approximately 850 Form 1 applications for prospective makers of suppressors on February 28. These denials were apparently made due to ...

Public Lands Lawsuit Settled—All Lands Remain Open to Hunting

Thursday, December 1, 2022

Public Lands Lawsuit Settled—All Lands Remain Open to Hunting

In 2020, the U.S. Fish and Wildlife Service expanded hunting and fishing opportunities on more than 2.3 million acres of land. That decision was challenged in federal court, and the NRA, Safari Club International, Sportsmen’s ...

On Crime, We Know What Works

News  

Monday, December 5, 2022

On Crime, We Know What Works

In recent years, much of elite opinion has been dedicated to obfuscating the causes and solutions to the increase in violent crime. At its least harmful, this messaging effort has focused on the admittedly complicated ...

NY AG James Sends Threatening Letter to Ammunition Sellers

News  

Monday, November 21, 2022

NY AG James Sends Threatening Letter to Ammunition Sellers

In a move that surprised absolutely nobody, anti-gun New York Attorney General Letitia James (D) announced last week that she would expand her assault on the Second Amendment by targeting ammunition sellers. AG James claimed, ...

NRA-ILA Backed Lawsuit Filed Challenging Oregon Measure 114

Thursday, December 1, 2022

NRA-ILA Backed Lawsuit Filed Challenging Oregon Measure 114

Today an NRA-backed lawsuit was filed challenging Ballot Measure 114, which voters passed by a slim margin last month. Measure 114 creates a falsely labeled “permit to purchase” a firearm requirement and bans standard capacity magazines, which it ...

Ohio: Emergency Powers Bill Advances to House Floor

Thursday, December 1, 2022

Ohio: Emergency Powers Bill Advances to House Floor

Today, the House Government Oversight committee voted 8-5 to pass Senate Bill 185, to guarantee that Second Amendment rights remain protected during emergencies. It will now go to the House floor for further consideration.

Colorado: Broomfield City Moves to Adopt Gun Control Package to Diminish Second Amendment Rights!

Thursday, December 1, 2022

Colorado: Broomfield City Moves to Adopt Gun Control Package to Diminish Second Amendment Rights!

Earlier this week, Broomfield City Council advanced a gun control package to impose on law-abiding citizens.  The second reading will be held in January.  In truth, none of the slew of regulations will stop criminals ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.