NRA-ILA | Biden’s Executive Order Targeting Gun Ownership

On Tuesday, Joe Biden issued an executive order on gun control that could accurately be described as a mile wide and an inch deep.

Media and gun control groups that beforehand had been salivating over the idea that the measure would impose “universal background checks” for firearm transfers had to content themselves with a vague directive for Attorney General Merrick Garland to develop a “plan” to move in that direction.

And while the order’s other provisions were similarly vague and insubstantial, there is no doubt what it all adds up to: antagonism toward gun ownership is now the official policy of the U.S. government’s Executive Branch.

The good news for gun owners is that — after multiple rounds of anti-gun executive orders in the Obama-Biden and Biden-Harris administrations — there isn’t a lot that can plausibly be done administratively on that front that has not already been done. Therefore, nothing in the order itself immediately or operationally limits Second Amendment rights. The order even acknowledges that it will take further action from Congress to achieve the big ticket items on Biden’s gun control wish list, including banning ALL private firearm transfers, as well as so-called “assault weapons” and “high-capacity” magazines.

On the other hand, what has been done has often ignored the limitations imposed by federal statutes and the Constitution itself. What will actually come from Biden’s instructions to the bureaucracy in his latest order is therefore anybody’s guess.

Complicating the picture was the enactment last summer of the misnamed Bipartisan Safer Communities Act (BSCA). The NRA opposed the legislation, warning that its vague language gave anti-gun officials nebulous authorities that could be abused to target law-abiding gun owners and firearm-related businesses.

Now, Biden is basically directing an alphabet soup of federal departments — including Justice, Health and Human Services, Education, and Homeland Security— to comb through the BSCA and come up with their own plans to implement it to the fullest extent possible.

One of the most onerous aspects of the BSCA was its lowering of the threshold for when a federal dealer’s license (FFL) is needed to sell or transfer firearms. Previously, an individual only needed an FFL when engaged in “a course of trade or business“ involving “repetitive” buying and reselling  of firearms with the “principal objective” of “livelihood and profit.” The BSCA removed the livelihood element so that profit seeking alone would fulfill the required objective of the sales.

This change broadened the FFL requirement, but it’s far from clear what that means in a practical sense. Fortunately, a “course” of “repetitive” buying and reselling of firearms is still necessary. But no one seems to know where the lines are now drawn.

Even national gun control groups haven’t come to a shared understanding. Brady-Giffords advocates for a numerical threshold of annual sales, an approach the Obama-Biden ATF specifically rejected under the “livelihood and profit” language. Meanwhile, Everytown argues that ANY firearm sale at a gun show or pursuant to an ad is presumptive proof the threshold has been met. But this was the standard contained in the Manchin-Toomey legislation that Congress itself rejected during the Obama-Biden administration. 

Thus, what Garland’s background check “plan” will look like and how it will be implemented remains a mystery.

Most of the other directives in the order boil down to a general principle that federal agencies should use whatever authorities they have to make life more difficult for gun owners or the businesses that serve them. Biden’s introductory statement that “we will no longer allow the interests of the gun manufacturers to win out over the safety of our children and Nation” demonstrates that he blames lawful industry — not the lawless, predatory criminals pulling triggers — for firearm-related violence. As long as he continues to labor under that delusion, little progress will be made on reducing violent crime, which not coincidentally tends to be concentrated in areas under legacy control of Biden’s political party.

Besides the background check provisions, another aspect of the order that could eventually lead to substantial infringements involves requiring the Department of Defense (DoD) to “further firearm and public safety practices” through its “acquisition of firearms.”

Similar plans have long been proposed by gun control activists for the law enforcement agencies of large cities. The basic idea is that companies bidding on firearm-related contracts would have to commit to developing “safer” firearm designs, such as the fabled “smart guns,” or “best practices” that limited the sorts of products they make available to the civilian market.

Such plans have generally been rejected, however, as agencies have pushed back on requirements that would limit their officers’ access to the highest quality equipment. Nevertheless, DoD’s unparalleled purchasing power, and its increasing politicization, are reasons for concern.

Other aspects of the order indicate how impoverished and detached from reality the “thinking” is that underlies the gun control movement.

For example, the Federal Trade Commission is “encouraged” to “issue a public report analyzing how gun manufacturers market firearms to minors and … to civilians, including through the use of military imagery.” This is merely a retread of a recently resurrected gun control effort from the 1990s. Minors, of course, are legally prohibited from buying firearms at retail. And “military imagery” is used to market everything from sunglasses to automobiles without any negative consequences. In any case, the point of this exercise is not to reduce crime. It is to exploit a judicially-created loophole in the Protection of Lawful Commerce in Arms Act and make it easier for activists to pursue extortionate lawsuits against the firearm industry.

A host of federal components are also encouraged to do whatever they can “to encourage effective use of … ‘red flag’ laws.” This basically means encouraging citizens to accuse each other in court of being too dangerous to have guns and letting a judge gaze into a crystal ball or use some other non-scientific hokum to predict an individual’s future behavior and determine that person’s civil rights based on things that have not even happened. Again, how the agencies will fulfill this mandate is anybody’s guess. But the inclusion of the Department of Education indicates that schools may soon be involved in targeting the firearms in students’ homes for seizure.

In summary, Biden’s latest executive order is not so much a roadmap as a declaration: gun ownership and firearm-related businesses are bad and a “whole of government approach” must be used to suppress them. Stay tuned to this page for details on what that looks like as the federal departments mobilize against the Second Amendment in the months ahead. And watch your NRA voter guides for information on which candidates will pledge to undo the damages wrought by the most anti-gun administration in U.S. history.