In May of this year, President Biden signed an executive order on new gun control measures, following another deadly shooting in Monterey Park, CA. The order attempts to place greater emphasis on background checks and strengthen other gun control measures. It lists 13 actions that the government will take in an effort to stem the incidence of gun violence in the US. As there have been more than 260 mass shootings in the country this year, people are still searching for ways to make gun laws more effective.
Despite the points made in the order, people remain skeptical about the effectiveness that it will have as many feel that the underlying problems causing repeated gun violence in the country will remain.
In this article, we will look at two of the major provisions of the order and examine why it is that people question their realistic chances of effecting major change: The order claims to provide guidelines for strengthening background checks among firearms dealers. It also attempts to strengthen “red flag” laws in those states that have enacted them. We will look at the history of these measures, how they have developed over time, and what the current order is changing in order to make them more effective.
Strengthening background checks by firearms dealers
The first provision attempts to clarify the definition of a firearms dealer, and force those responsible to conduct background checks on potential gun buyers. The order will clarify existing federal laws that require background checks by anyone in the business of selling firearms, with the aim of implementing almost universal background checks “without additional legislation.”
The goal is to have these background checks become universally mandated. However, many people continue to question the realistic feasibility of the laws. Many fear that the background check mandate can easily be sidestepped. For one thing, the statement that background checks will be “as close to universal background checks as possible” is clearly not definitive.
Repeated changes in the definition of a seller
The order defines a gun dealer in a way that cannot be legally verified. Although it states that dealers are required to obtain federal licenses and conduct background checks on customers, it leaves the question of who exactly can qualify as a dealer open.
There have been repeated efforts made to clarify and quantify the definition of a “seller” for some time. One proposal made during the Obama presidency suggested that anyone selling 50 firearms in a given year should be required to obtain a license. Other proposals have suggested numbers as low as five.
All of the previous suggestions that legislators have put on the table for placing a number on the definition of a firearms dealer have ultimately fallen through. Both Congress and other legal officials have repeatedly claimed that enforcing the rule would be too difficult, because people not operating official businesses would find ways of getting around the law.
The 2022 Bipartisan Safer Communities Act
In 2022, Biden passed the Bipartisan Safer Communities Act, which changed the language in the federal legislation governing the definition of a firearms dealer. Despite the alteration, the definition remains vague. What had been defined as “”devot[ing] time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms” was changed to replace the phrase “principal objective of…” to “to predominantly earn a profit.”
This first change in language was intended to emphasize that those selling firearms needed to be in the primary profession of doing so, which, it was hoped, would force those who owned firearms businesses to obtain licenses. In other words, people considered the word “livelihood” to be too subjective and therefore open to dismissal. However, the new 2022 definition failed to take into consideration people who did not work full-time but rather engaged in occasional sales as a side job, or who bought and sold from their personal collections.
Because of these potential loopholes, A group of senators initiated a bicameral letter in early May stating that the provision intends to target “…sellers [that] have, for decades, taken advantage of commercial marketplaces, like gun shows, to turn a profit by funneling firearms into the hands of convicted felons, domestic abusers, gun traffickers, and other prohibited persons.”
Biden passes control to the Attorney General
Therefore, the 2023 order changed the language yet again. The new definition calls a firearms dealer “[someone] who is engaged in the business of buying and selling firearms.” Biden hopes to enforce this change through the Attorney General, in order to “clarify the definition of who is engaged in the business of dealing in firearms” by means of “rulemaking, as appropriate and consistent with applicable law.” The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) falls under the department of the Attorney General.
Garland’s task is to devise a plan that will stop gun dealers whose licenses have been revoked or given up from continuing to sell. Biden’s order instructs him to release ATF records from the inspection of firearms dealers who have been cited for violations in the past. The goal is to bring awareness to the public and eventually hold gun dealers accountable for future crimes.
Whether or not Attorney General Garland will be able to bring about the desired changes is yet to be seen. But given the challenges of detecting and holding the right people accountable at the right times, it seems nearly impossible.
Red flag laws
Another provision of the 2023 order is the expansion of “red flag” laws. Otherwise known as Extreme Risk Protection Order laws, these laws are intended to allow people close to an individual who wishes to buy firearms to petition for the individual to be temporarily barred. Red flag laws currently exist in 19 states and the District of Columbia.
One obvious problem with these laws is that the states that have enacted them are primarily “blue states,” whereas the highest incidence of gun violence by far takes place in red ones. One recent study concluded that eight of the ten states with the highest murder rates from guns were states that voted Republican in 2020. The red flag law shows an entirely different map, with most of the states enacting these laws being primarily Democratic-leaning.
Connecticut led the way
The first state to enact a red flag law was Connecticut. Connecticut’s decision came after a mass shooting at the Connecticut Lottery in 1998. The initial law stated that a person’s firearms should be taken away if that person posed an “extreme risk” to society. Shortly after its enactment, the law was amended to strengthen its effectiveness as the original wording was considered to have been too vague. The 1999 wording stated that as soon as a judge orders an investigation into a complaint against a given individual, that individual’s name is included in a national computer database, supposedly making him or her ineligible to purchase firearms.
After more than 20 years, in 2022 state officials determined that the laws again needed to be fortified, with one state senator saying there were “gaping holes in the statute we had put on the books in 1999.” State officials determined that it was too easy for people whose firearms had been confiscated to get them back. The 2022 amendment allowed family members to initiate the application for a person to be put in the database, which quickly increased the number of applications manifold.
Nonetheless, the 2022 changes still proved inadequate as many applications were filed against people for the wrong reasons. Connecticut police became overburdened, and lawmakers determined that the law needed to be further refined in order to more accurately reflect their original purpose. This year lawmakers added additional modifications to the law, removing the clause that stated two police orders are needed to get an emergency risk protection order from a judge.
The degree of effectiveness that these additional modifications will have on Connecticut’s gun violence rate is yet to be seen, but many people believe that it still doesn’t adequately address the problem.
Other states have refused
Other states’ failed red flag law enactments abound. The state of Pennsylvania, for example, considered such a law but ultimately rejected the idea, despite the fact that passage would make the state eligible for millions of dollars in violence prevention assistance, and some state legislators were in favor of it.
One Pennsylvania legislator claimed that such a law would be misused in similar ways to how domestic violence laws are misused, meaning that people call them out for purposes of revenge or on other unjustifiable bases. Another said that the law would be an unnecessary duplication of Section 3 of the Mental Health Procedures Act, which allows authorities to take a person who has received “a written application by a physician or other responsible party… to an approved facility for an emergency evaluation.”
The Mental Health Procedures Act is potentially problematic, though. It allows people who receive mental health evaluations to be released on questionable terms, and their information is not necessarily archived. Therefore, those legislators who favor the enactment of additional legislation claim that the existing law allows many potentially dangerous people to remain unidentified. Nonetheless, the state remains stuck on the issue.
Each of the states that has enacted red flag laws face problems with interpretation and enforcement. The 2023 order attempts to target these problems, but it is not clear how effective the changes will be.
Other points similarly remain unclear
There are other provisions in the order, as well. One section is intended to target the problem of loss and theft of firearms during shipping. The incidence of missing firearms during the shipping process increased by almost three times from 2018 to 2022. Therefore, Biden is directing the Departments of Transportation and Justice to engage more closely with carriers and shippers and try to improve reporting on firearms loss and theft.
This too is a questionable idea. What exactly is the nature of “engagement?” Do shipping companies have the time, resources, and motivation to improve their reporting? As the directive is new, the answers to these questions are yet to be seen, although many are skeptical about efficacy in this area, as well.
The order also states that there will be increased reporting of ballistics data, as well as federal support for gun violence survivors and their families. In addition, Biden is calling for the improvement of devices to detect guns due to the frequent failure of metal detectors to do so.
Will it be enough?
Time will tell whether Biden’s 2023 order has any real effect on the incidence of gun violence in the US. Unfortunately, the history of the problem doesn’t give a strong case for improvement. Given the continued vested interests of a large number of legislators, the influence of the National Rifle Association and related groups, and the continued resistance to change by a high percentage of Americans, most indicators seem to point towards continued failures in enforcement and effectiveness of the laws. Whether or not a real solution is possible looks increasingly unlikely.