If Biden’s ‘Background Check’ Executive Order Has the Teeth He Says It Does, It’ll Be Illegal

President Biden has issued another executive order, this time to “move us as close as we can to universal background checks without new legislation.” At an event marking the occasion, Biden said:

Today, I’m announcing another executive order that will accelerate and intensify this work to save more lives more quickly.

First, this executive order helps keep firearms out of dangerous hands, as I continue to call on Congress to require background checks for all firearm sales. (Applause.)

And in the meantime — in the meantime, my executive order directs my Attorney General to take every lawful action possible — possible to move us as close as we can to universal background checks without new legislation.

How alarming is this? That depends. If Biden follows the law, it’s fine. If he doesn’t — which he often does not — it will represent yet another attack on Congress’s power to make law.

On the one hand, the statute in question — the 1968 Gun Control Act — does include the quoted “engaged in the business” language. And there is, of course, a point at which it would meaningfully apply to someone who isn’t a licensed gun dealer. If, for example, I were selling hundreds of guns per year from my house in Florida without first applying for an FFL (Federal Firearms License), I’d be in violation of the law. If President Biden is merely engaged in an earnest attempt to clarify who counts under the law, then he’ll be fully within his powers. He’ll also — as Barack Obama discovered back to his chagrin in 2016 — be able to change almost nothing of consequence by doing so.

On the other hand, President Biden is a pathological liar, and he has repeatedly proven willing to bend the language of old statutes to achieve ends that are forbidden under both a plain reading of the law and decades of pre-existing precedent (see: student loans, the eviction moratorium, the vaccine mandate, his other gun-control orders, etc.). Biden says his order will “move us as close as we can to universal background checks without new legislation.” But, if this is meaningfully true, then he is going to have to have something absurd and illegal up his sleeve — such as, say, defining anyone in the United States who sells a gun under any circumstance as being “engaged in the business.”

Which would be illegal. Until last year, federal law defined “engaged in the business” as:

a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his collection of firearms.

This implicitly excluded people who were not engaged in “the repetitive purchase and resale of firearms” “with the principal objective of livelihood and profit,” and explicitly excluded those who make “occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his collection of firearms.”

Since the passage of the Bipartisan Safer Communities Act in 2022, that section has read (bolding mine):

a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his collection of firearms.

The BSCA defines “to predominantly earn a profit” to mean:

that the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.

And, per the Congressional Research Service, the purpose of this change was:

to require persons who buy and resell firearms repetitively for profit to be licensed federally as gun dealers, even if they do not do so with “the principal objective of livelihood.”

Or, put another way: the alterations within the BSCA were designed to ensure that people who were engaged in the business of selling firearms for pecuniary gain as, say, a side business are covered under the law.

It is possible that the BSCA will allow the federal government to include a few more people within its definition of “engaged in the business.” It is not possible that it will get the United States substantially closer to “universal background checks.” Federal law still includes the “regular course of trade or business” language; it still includes the “repetitive purchase and resale of firearms” language; and it still includes the “shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his collection of firearms” exclusion. What President Biden wants is for everyone who obtains a firearm to be subject to a federal background check. What the BSCA does is bring a handful of new people into the “engaged in the business” fold. There is no way for an executive order to bridge this gap — and, if Biden tries nevertheless, he will lose.