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What You Need to Know About Obama’s Plan to Bypass Congress on Guns

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Stymied by Republicans in Congress, President Barack Obama is expected to act alone to take executive action to tighten restrictions on gun sales.

White House adviser Valerie Jarrett, speaking at a vigil last week for victims of the 2012 Newtown, Conn. shooting, confirmed that the president has asked his staff to complete a proposal that would expand background checks on gun sales without congressional approval.

Before Jarrett’s public pronouncement, The New York Times and other media have reported the Obama administration’s action would broaden the definition of who is considered a high-volume gun dealer, a move that could force background checks for certain sales at gun shows, online and other areas that fall outside the law.

The Gun Control Act of 1968 already requires professional gun dealers to be licensed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Buyers of guns from federally licensed dealers are subject to background checks.

But the existing law doesn’t clearly define what it means to be in the business of selling guns.

Obama’s executive action would intend to clarify that distinction in a way that broadens who is in the gun-selling business, so that more sales are “on the books” and thus require a background check.

According the legal experts who spoke to The Daily Signal, Obama would be within his rights to pursue such an action because he would be simply reinterpreting how to apply already existing law, rather than creating new legislation.

But these experts also said Obama’s action would have limited impact on the availability of guns.

“When Congress passes an ambiguous statute, the president absolutely has it within his authority to interpret federal statutes for purposes of how he chooses to implement them,” said Adam Winkler, a UCLA professor focused on constitutional law and the Second Amendment.

“In this case, the law requires someone to obtain a license if it’s in the business of selling firearms. But there is no clear definition of what that means. It it just someone who sells guns, or do they need to sell a certain number of guns, a specific type of gun, or sell it in a specific place? We don’t know the parameters. So it’s up to administrative agencies to define what that means.”

Nicholas Johnson, a Fordham University law professor focused on firearms law and the Second Amendment, agreed that there is “no doubt” Obama could use existing law to expand the definition of a gun dealer, though he expects the effort to be challenged in court.

“They are not changing the statute,” Johnson said of Obama’s proposed action on guns. “They are looking at the 1968 Act and saying, ‘How can we administratively change the definition of what it means to be a dealer and to capture it in away to cover more people in gun shows?’ There is no doubt the president and ATF have the authority to change the definition of what it means to be dealing in firearms.”

Winkler and Johnson say the key question that…

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