5 Ways State Laws Could Bypass Obama's Executive Action On Gun Reform

by Troy Lambert
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Boise, Idaho

Driving downtown with my young son, we see a man step out of a large truck dressed in camouflage, holding a rifle with a scope in his right hand.

He’s wearing a ball cap with some sort of logo on it pulled low over his eyes, and is wearing dark sunglasses. Strapped to his hip is a large handgun.

We don’t even slow down, and no one stares.

He’s parked close to a local gun store, and barely visible over the side of the truck bed is a pair of antlers.

It doesn’t take much imagination to picture what the blue tarp back there conceals.

New York City

A man steps out of a large truck with a rifle in his right hand.

On his hip is a large handgun.

He is wearing a camouflage jacket, a ball cap pulled low over his eyes and is wearing dark sunglasses.

Within seconds, he is surrounded by police officers.

The weapons are confiscated, and he’s placed in the back of a squad car, taken downtown and booked into custody.

The reasons for owning guns, and publicly carrying them, differ largely from region to region.

While there is no question of the motives of the man in Boise, Idaho, the man in New York is immediately suspicious.

Even if he is a hunter, the time and place he chose to display that fact is clearly inappropriate and suspicious.

With President Obama taking Executive Action on gun control that will most certainly be legally challenged, an uphill battle to get states to implement the new regulations is looming.

But what exactly are states objecting to, and why?

Executive Actions

Executive Actions themselves have long been controversial, and for good reason. They bypass Congress, a part of the checks and balances our system of government is based on.

However, a President is legally allowed to take such action, as long as he does not make new legislation by doing so.

The recent Executive Actions don’t really make new legislation, simply clarify or seek to more strictly enforce laws already on the books.

But many states disagree and plan not to comply.

What are the actions causing the most concern?


Action: Clarifying who a dealer is.

The Executive Action states that it does not matter where an individual does business, whether at a store, on the Internet or at a gun show, if they are selling guns, they need to be licensed and conduct background checks.

The Problem: Clarifying who a dealer is.

There isn’t really an establishment for how many guns an individual can sell before they need to be licensed.

According to The New York Times, the administration has stated that someone selling even one or two guns could be required to be licensed.

Even though this action seeks to close an Internet loophole, what it does not say may be more objectionable than what is spelled out.

In some states, laws differ from federal law regarding multiple gun sales and dealer licensing.

The change in the way these laws must be applied and enforced come with a cost not only for compliance but with the cost of enforcement. Getting state to adopt this policy could be an uphill battle.

Adding ATF Agents

Action: Enforcement of Existing Laws

The Executive Action calls for the addition of 200 ATF agents with money included in the President’s budget for FY2017 to help local jurisdictions effectively enforce current laws.

The Problem: Federal jurisdiction

While it seems that local jurisdictions stretched for funding and training would welcome federal help, that simply isn’t the case in some states.

In fact, Kansas passed a law in 2013 stipulating the state could override Federal gun laws.

Other states like Oklahoma, Alabama and Missouri introduced similar bills.

While these are more symbolic than anything, and likely won’t stand up in court, they do reveal state attitudes toward federal agencies and statutes.

Increasing mental health treatment and reporting to the background system

Action: Remove unnecessary legal barriers to states reporting relevant information to the background check database.

The Problem: Privacy policies and concerns

The truth is “unnecessary legal barriers” are actually privacy policies, many set by the states themselves.

There are two essential issues with asking states to eliminate or change their policies. .

First, there is the issue of security, a concern to both state and federal governments.

The more places data is stored and shared, the more vulnerable it is.

“Many people in the public don’t really flinch when see a headline like this: ‘Russian Hackers Amass Over a Billion Internet Passwords’…this number—billion, with a ‘b’—gives us a moment of pause,” says Joseph Nedelec, Assistant Professor of Criminology and Technology at the University of Cincinnati when discussing cybercrime and digital security.

"The reason for that is it’s an indication of how much information we put online, available to people who are seeking to use it maliciously.”

The second is cost.

A change in privacy policy means an edit or recreation of forms users sign or agree to online, the cost of contacting each user and issuing new agreements, and the risk that users will not agree to the new terms.

Convincing states to compromise privacy and undertake such monumental efforts will be potentially costly and promises resistance.

Increasing Research into Gun Safety Technology

Action: Research into Smart Gun Technology and Gun Safety

The President has ordered the Department of Justice, Homeland Security and Department of Defense to increase research into gun safety technology and to review smart gun options on a regular basis.

The Problem: Smart Guns are not the answer

There are numerous reasons gun owners are unlikely to adopt smart gun technology, and they fall into three essential categories.

The first is any technology that could cause a gun not to fire when the user wants it to fire is unacceptable. This is not only true in home defense, but in hunting and target shooting as well.

This is the very reason many gun enthusiasts still embrace the revolver: it is simple and failures are infrequent.

The second is cyber security.

In the Internet of things, one of the primary concerns is hackers taking control of computer controlled devices.

There are only a couple of Smart Gun options, at least at the moment, and neither is both foolproof and unhackable. In fact, the current options may make us all less secure.

The third is that best type of security already exists: physical trigger locks and gun safes. However, irresponsible gun owners ignore these every day.

It is unlikely that the problem demographic, who already don’t follow safety protocols, would spend significantly more for a weapon using Smart Gun options.

All these issue make it unlikely states will participate in research, or to regulate gun purchases and possession to encourage smart weapons.

The reasons for gun control and gun ownership vary from state to state and region to region.

Not all states agree with Executive Actions, and some have even enacted laws attempting to override Federal gun control laws.

Redefining dealers, adding ATF agents, and increasing mental health reporting, though they seem like good ideas on the surface, may not have prevented any of the recent mass shootings, and may have little to do with the prevention of future tragedy.

There is no doubt that violent crime is an issue. “Violent crimes are much less common than property offenses, states a crime analysis from the University of Portland. “However an aggravated assault is still reported every 37 seconds somewhere in the country. A robbery is reported every minute. A rape every 6 minutes. And once every 30 minutes someone in the country is murdered.“

In attempting to address this issue, be proactive and bypass Congress, President Obama may have unleashed a costly and controversial debate with states, but his actions have had at least one tangible benefit.

They’ve reopened a discussion about gun control, violence and much needed reform that might otherwise have remained on the back burner.

In doing so, Obama has brought it to the forefront of the current presidential race.