Musing: potential camel’s nose of Obama’s executive actions on guns

While commentary from the media and left have reflexively praised the president’s announcement, some commentary on the right has remarked primarily upon how little new the president actually proposed. E.g., National Review’s Charles C.W. Cooke argued that the long-term result would be counter to the president’s stated goal, as he and his supporters would have to hail this minor change as significant, thereby further entrenching gun culture. Hot Air’s Ed Morrissey said the president mostly restated existing law, with one exception (which I address below).

Here is a section from the White House fact sheet, with vague language highlighted — language that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) must interpret in order to enforce:

Today, the Administration took action to ensure that anyone who is “engaged in the business” of selling firearms is licensed and conducts background checks on their customers. Consistent with court rulings on this issue, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has clarified the following principles:

  • A person can be engaged in the business of dealing in firearms regardless of the location in which firearm transactions are conducted. For example, a person can be engaged in the business of dealing in firearms even if the person only conducts firearm transactions at gun shows or through the Internet. Those engaged in the business of dealing in firearms who utilize the Internet or other technologies must obtain a license, just as a dealer whose business is run out of a traditional brick-and-mortar store.

  • Quantity and frequency of sales are relevant indicators. There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement. But it is important to note that even a few transactions, when combined with other evidence, can be sufficient to establish that a person is “engaged in the business.” For example, courts have upheld convictions for dealing without a license when as few as two firearms were sold or when only one or two transactions took place, when other factors also were present.

What I see therefore is a potential for cronyism. Depending upon how strictly the vague language is interpreted, if private individuals wishing to sell their personal firearms are required by order to conduct those sales exclusively through licensed gun dealers, that would inconvenience private individuals while driving extra business to the dealers.

A public-choice interpretation of that change would anticipate licensed dealers becoming more supportive of federal regulation in their industry. As a small-potatoes competitive threat, the supposed issue would seem to bear similarity to teeth-whitening services offered by mall kiosks et al. as opposed to by licensed dentists.

As with other licensed professions, expanding the scope of licensure would tend to have no discernible effect on service quality, but by restricting competitors it would raise earnings for licensed professionals. But if the executive actions can’t even be expected to “reduce gun violence and make our communities safer,” what would be the point?

Jon Sanders / Director of Regulatory Studies

Jon Sanders studies regulatory policy, a veritable kudzu of invasive government and unintended consequences. As director of regulatory studies at the John Locke Foundation, Jo...

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