Shortly after multiple shooters murdered at least 14 people in San Bernardino, California, on Wednesday, President Barack Obama sat down for an interview with CBS News and acted out what has now become a depressing routine.
“We have a pattern now of mass shootings in this country that has no parallel anywhere else in the world,” he sighed. “We should never think that this is something that just happens in the ordinary course of events, because it doesn’t happen with the same frequency in other countries.”
“We have a pattern now of mass shootings in this country that has no parallel anywhere else in the world.”
“We can’t let it become normal,” Obama said before a podium at the White House briefing room. “If we truly care about this, if we’re going to offer up our thoughts and prayers again, for God knows how many times, with a truly clean conscience, then we have to do something about the easy accessibility of weapons of war on our streets to people who have no business wielding them. Period. Enough is enough.”
According to the crowdsourced Mass Shooting Tracker, the San Bernardino shooting marked U.S. mass shooting number 355 for the year so far. That’s more than one per day. While the overall gun homicide rate in the United States has remained largely static since 2000, mass shootings are becoming increasingly common and increasingly deadly.
Obama has said he hopes the tragedies in San Bernardino and Colorado Springs spur lawmakers to action, “but what we do know is that there are steps we can take to make Americans safer and that we should come together in a bipartisan basis at every level of government to make these rare as opposed to normal,” he said.
The odds of that happening aren’t exactly in the White House’s favor. After the massacre of 20 school children at Sandy Hook Elementary School in 2013, a seemingly bipartisan effort to expand background checks fell a few votes short of the 60 needed to overcome a Senate filibuster. If the bodies of dead children couldn’t overcome the power of the gun lobby, it’s unlikely anything could surpass near-universal Republican opposition to any legislative strengthening of gun-control rules.
Nevertheless, the Obama administration isn’t out of options. According to a report released earlier this year by the pro-gun-control group Everytown For Gun Safety, there are a litany of actions on guns the president could take that circumvent Congress entirely. Entitled Beyond Gridlock, the report lays out five steps the executive branch could take right now that, the authors argue, will make Americans safer.
The group, which was co-founded by billionaire former New York City Mayor Michael Bloomberg, offers suggestions that are largely in the realm of how regulatory agencies interpret already existing law. These aren’t broad executive actions, like the one Obama issued on immigration. Instead, they’re narrowly focused regulatory changes. “These are all things that can be done through regulation or otherwise don’t require any statutory action,” Jonas Oransky, Everytown’s legal counsel, told the Daily Dot. “It’s pretty clear to us which things need Congress to act and which things don’t. We don’t have trouble making that distinction.”
“If you want to read the tea leaves, all you need to do is read the transcripts of the president’s remarks in the wake of these shootings,” Everytown Research Director Ted Alcorn said. “He’s clearly demonstrated his strong position that this country needs to take incremental steps to reduce gun violence.”
Representatives from the NRA did not respond to our request for comment.
There is some precedent for the Obama administration taking this type of action. Following the Sandy Hook shooting, the president enacted a 23-point gun control plan that did things like increase the flow of information into the background check system and increase training resources for first responders who may find themselves in active shooter situations.
What follows are five meaningful actions President Obama could take right now on gun control, regardless of Congressional inaction, drawn from Everytown’s Beyond Gridlock report.
1) Crack down on “high-volume” private gun sellers
In the United States, there are two types of gun transactions: ones going through licensed dealers and those handled by unlicensed private sellers. Licensed dealers—like Walmart or your independent, neighborhood gun shop—are required by federal law to register with the government and conduct criminal background checks on buyers for every purchase. While some states have imposed similar rules for private sellers, those requirements are not universal.
The purpose of the distinction between the two types of sellers was to allow private citizens to sell a gun without a mess of bureaucratic red tape. However, as Everytown notes, there are private sellers taking advantage of the loophole to sell large quantities of firearms.
Right now, it’s illegal to “engage in the business” of selling guns without a federal license.
At issue is a vagueness in how guns laws are interpreted. Right now, it’s illegal to “engage in the business” of selling guns without a federal license. This type of seller is defined as someone who “devotes 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.” The law contains an exclusion for hobbyists and collectors who make occasional sales.
Since the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) hasn’t defined precisely what “engage in the business” means, law enforcement agencies around the country don’t have a single, universal standard to apply when determining if a non-professional seller is distributing enough guns to qualify as a dealer who needs to be licensed. The issue is compounded by websites that allow unlicensed sellers to sell guns in whatever quantity they desire without the need for background checks. An Everytown investigation estimated that a single website, Armslist.com, provided a platform for unlicensed high-volume sellers to sell nearly 250,000 guns in 2013 alone.
“A small group of high-volume, unlicensed gun sellers is taking advantage of this and flooding the unregulated market with firearms,” said Alcorn. “These are guns that we know are the target of unscrupulous criminals who seek them out in marketplaces where they know they’re available without a background check.”
The Obama administration could instruct the ATF to create a single test for determining if a seller was selling firearms in a manner and quantity necessitating their registering at a licensed dealer. Of the five major suggestions put forward in the report, this idea is the one Everytown is pushing the most vociferously and believes has the best chance of being enacted in the near future.
2) Restrict the number of guns allowed on school campuses
The 1990 Gun-Free School Zones Act bars people from carrying loaded firearms on school campuses. The law contains exceptions for certain state gun permits. Much like in the previous example, the ATF has never specified which state permits count as exceptions and which don’t.
This lack of clarity matters because the screening process used in processing various state permits varies widely. While some are rigorous, others don’t even require a criminal background check. In practice, Oransky notes, any type of state-issued carry permit is effectively being treated as a license to also carry in a school zone.
There are other instances in which the ATF segregates certain permits as having sufficiently stringent requirements to quality for a legal exemption from others that do not. For example, the bureau publishes lists of state-issued permits that exempt someone from having to go through a federal background check at from a licensed firearms dealer. Everytown argues that Obama should instruct the ATF should do something similar for schools.
3) Arrest people who attempt to buy guns illegally
When purchasing a firearm from a licensed dealer, buyers have to fill out a form, which asks if they are legally prohibited from buying a gun because of a prior criminal or domestic violence conviction. Lying on the form and trying to buy a gun from a dealer when legally barred from doing so is a crime—but one that’s rarely punished.
According to a 2008 Justice Department study, unsuccessfully attempting to illegally buy a gun is a strong indicator of future criminality. People were 28 percent more likely to be arrested in the five years after they were denied a gun purchase than in the five years prior to the attempt.
“In most states, someone who fails a background check at a licensed dealer can buy a gun with no check from an unlicensed seller, [therefore] it is crucial that law enforcement know when criminals or domestic abusers are attempting to obtain a gun,” the Everytown report reads. “Identifying and intercepting dangerous people before they buy a gun can make the difference between preventing tragedy or dealing with the aftermath of a murder.”
“ATF is a severely underfunded, cash-strapped, under-resourced agency that simply does not have the ability to go after all those people—it really can’t do it,” Oransky said. “So they triage and they come up with the people they think are the most dangerous, and a very small minority actually get a knock on the door and are arrested.”
The Obama administration could devote additional resources to going after attempted gun purchasers who lied on their background check forms and establish a notification system for telling local authorities when such an incident occurs.
4) Protect all domestic violence victims from gun violence
In addition to convicted felons, people convicted of misdemeanor domestic violence charges are prohibited from legally purchasing or possessing guns. However, in order for an incident to qualify as misdemeanor domestic violence, the offender must be a “current or former spouse of his victim, share a child with his victim, cohabit or have cohabited with his victim, or be ‘similarly situated to a spouse’ of the victim,” as defined in a 1997 amendment to the Gun Control Act of 1968.
“Identifying and intercepting dangerous people before they buy a gun can make the difference between preventing tragedy or dealing with the aftermath of a murder.”
As in prior examples, the federal government has never specified exactly what “similarly situated to a spouse” signifies in this context. “That term has never been given definition, and what that means is that prosecutors and law enforcement do not know how to enforce the law,” Oransky said. “They effectively do not know which people are actually prohibited and should be stopped from having guns. They don’t know who to arrest. They don’t know who to prosecute.”
Oransky argued that an obvious fix is for the ATF to clarify the phrase by using the same definition applied to the language when it appeared in the 1994 Violence Against Women Act. This fix would cover unmarried, childless partners who aren’t cohabiting.
One-third of all female homicide victims are killed by their male partners. Since younger women, who are less likely to be married, are more likely to be the victims of domestic violence, ensuring that the law protects them from violence is essential—especially as the share of single people in the U.S. population continues to rise.
5) Collect aggregate data on unlicensed gun sales
While the federal government doesn’t require background checks for unlicensed gun sales, 18 states have passed their own legislation filling in that loophole, requiring all gun buyers to go through background checks and private sellers to fill out similar paperwork as licensed gun dealers. However, when the FBI collects that information, which happens through a phone call with licensed gun dealer facilitating the private transaction, the bureau does not record whether or not the sale is private.
The information is being collected on the form, but Everytown’s investigation found that the FBI simply isn’t asking for it.
This crucial data point provides a way to judge how effective gun control laws are in preventing people whose prior behavior indicates that they shouldn’t be allowed to buy guns. The FBI reportedly doesn’t have data on how many private sale background checks are being conducted and how many of those checks result in a denial. “The problem,” Oransky said, “is … when we try to talk about the effectiveness of those laws and when people in those states try to measure the effectiveness of those laws and think about how those private-sale laws are enforced.”
The lapse wasn’t intentional; there’s no policy reason behind it, Everytown found. Many of these states passed their unlicensed seller background check laws after the federal system went into place. The fix here, requiring the FBI to ask one more question of gun dealers when collecting this information, is a simple one.
Illustration by Max Fleishman