Hillary Clinton Is Openly Promising to Amend Federal Gun Laws by Executive Order

By Charles C. W. Cooke

Tuesday, October 06, 2015

My little corner of the political Internet is abuzz and aflutter today with the rather alarming news that the Democrats’ presidential front-runner, one Hillary Rodham Clinton, hopes to impose gun control by “executive order” if she wins. Here she is, in her own words, conceding as much for posterity:

    Tighten the gun-show and Internet-sales loophole [sic] if Congress won’t. If Congress refuses to act, Clinton will take administrative action to require that any person attempting to sell a significant number of guns be deemed “in the business” of selling firearms. This would ensure that high-volume gun sellers are covered by the same common-sense rules that apply to gun stores — including requiring background checks on gun sales.

A little background, before we go any further: Under contemporary federal law, the executive branch enjoys a good amount of discretion in determining who is subject to the rules that govern commercial transactions and who is not. Presently, this task falls to the ATF, which is empowered to distinguish between those who sell firearms “with the principal objective of livelihood and profit” — or, put another way, for whom “the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain” — and those who sell guns privately in the pursuit of “improving or liquidating a personal firearms collection.”

In my view, this arrangement is a sensible one. As a general matter, I am skeptical toward any legislation that relies upon the presumed good sense of allegedly impartial administrators. But, in this case, I think that Congress was correct to grant some leeway. From time to time, you will hear reformers suggest that legislators should be more specific — in particular, that they should determine who is and who is not a “commercial seller” on the basis of hard numbers (guns sold, profit made, etc.). I can certainly understand the instinct behind this approach — taking power away from bureaucrats is a broad aim of mine. In practice, though, I suspect that it would be far too blunt to be effective or fair.

Suppose a man inherits his father’s estate, and, in addition to all of the other possessions that come his way, takes ownership of the patrimonial firearms collection. Should we expect him to become a gun dealer if the number of units he has for sale exceeds an arbitrary limit? I think not, no. What about the guy who goes through a few handguns or rifles until he finds one he likes? Must he apply for a license after getting it wrong for the third time? As are all government systems, the status quo is imperfect. But, on balance, I suspect that we are far betting off allowing the executive branch to examine each of these cases on their merits than we would be if we tied its hands too tight.

This being so, one might reasonably ask why conservatives such as myself seem to be so troubled by Hillary’s proposal? Isn’t she just suggesting that the executive branch err slightly more on the side of caution? Isn’t she merely promising that she will more effectively enforce the law? The guidelines already suggest that “high-volume gun sellers” should be treated as commercial vendors are; what is so wrong with a candidate’s promising to protect that rule?

In a vacuum, the answer to this lattermost question is “nothing.” And yet, because she has so openly presented her plan as an end-run around Congress, Clinton has managed both to preemptively negate her own defense and to give her game away. Ostensibly, she is doing no more than promising that, were she running things, the existing demarcation lines would be well policed. In practice, though, she’s openly telegraphing her intention to amend the law.

There is a material difference between a candidate’s saying, “this law isn’t being properly executed and in consequence people are getting away with ignoring it,” and a candidate’s saying, “I will use my discretion to transmute the members of one group into members of another, and thereby do ultra vires what Congress will not.” By conceding that her policy goals in this area run contrary to Congress’s will, Clinton is promising not to uphold or to reinterpret the existing rules but to alter them, and thus to achieve by fiat what she cannot achieve by legislation. The definitions laid out in 18 U.S. Code § 921 provide some space for discretion, certainly. But they cannot credibly be read to allow the drastic modifications that Clinton is promising. As 18 U.S. Code § 922 makes clear, the regulations on the books are to be applied to those people who can be reasonably cast as a “licensed importer, licensed manufacturer, or licensed dealer” or deemed to be engaged “in the business of importing, manufacturing, or dealing in firearms.” Beyond nailing a few smugglers and black-market types, there’s little room here for games.

As always, the boundary that separates appropriate judiciousness and willful tyranny is a thin and flimsy one. In this case, as in so many others, there is little to suggest that Hillary Clinton isn’t readying herself for yet another swift walk onto the wrong side of the line.