During a March 14 visit to Monterey Park, California — where a gunman killed nine people and injured 11 more in January — President Joe Biden announced a wide-ranging executive order intended to address gun violence.
The plan, which draws heavily on the provisions contained within the Bipartisan Safer Communities Act, signed into law last June, includes directives to increase public awareness and use of red flag orders and safe storage laws, address an uptick in firearms stolen during shipping, and beef up direct federal support for communities affected by gun violence.
The announcement of the new executive orders drew praise from gun reform advocates and Democratic lawmakers, who said it is a step in the right direction at a moment when Congress is unlikely to move on tougher reform measures. “President Biden’s executive order is bold, sweeping, and will save thousands of lives,” Democratic Senator Chris Murphy wrote on Twitter. Meanwhile, Republicans in Congress and pro-gun groups panned the executive order as overreach: “The Biden/Harris administration attack on the firearm industry continues,” the National Shooting Sports Foundation, the industry’s trade association, tweeted.
Both might be overselling. The order largely directs federal agencies under Biden’s control to step up enforcement, clarify existing federal gun laws, and take new steps to implement the Safer Communities Act. It signals that Biden has not abandoned the issue of gun violence even after Republicans took control of the House, likely forestalling any new federal legislation on guns for at least the next two years.
“None of this absolves Congress from the responsibility of acting to pass universal background checks, eliminate gun manufacturers’ immunity from liability,” Biden said, speaking to survivors and residents in Monterey Park. “And I’m determined once again to ban assault weapons and high capacity magazines.”
At the center of the order is a familiar issue for Biden: background checks. Biden said he instructed Attorney General Merrick Garland to “take every lawful action possible to move us as close as we can to universal background checks without new legislation.” The declaration sounds sweeping, but the particulars of Biden’s directive are quite narrow: Biden is asking the Department of Justice to ensure that more firearms sellers obtain a Federal Firearms License, which in turn would require them to perform background checks on gun sales.
How will the order affect background checks?
Biden has tried for decades to get Congress to pass universal background checks, which would require all sellers to initiate a background check before any gun sale. His focus on this issue dates back to at least 1993, when he helped usher the Brady background check law through the Senate.
Since the 1968 Gun Control Act, any gun seller who is “engaged in the business of dealing in firearms” must be a federally licensed gun dealer. And the 1993 Brady law requires licensed dealers to perform a background check on any prospective buyer before handing over a gun.
For years, the definition of “engaged in the business” was ambiguous. It was intended to exempt individuals who sell privately only on occasion, but many sellers avoided registering as an FFL despite routinely selling guns at gun shows or through online classified sites. In total, 29 states require no background checks on private sales.
A measure in last year’s Safer Communities Act clarified that anyone selling guns with the intent of making a profit needs to seek a license, which is broader than the prior requirement pertaining to those who sold guns “with the principal objective of livelihood and profit.” It seems like a small change, but proving that someone was selling guns to support their livelihood could be difficult.
“It is critical to rein in those Americans who sell firearms privately absent background checks with a reckless disregard for public safety,” said David Chipman, a former special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives and Biden’s first nominee to be its director. Chipman now serves as a board member for the gun violence prevention group Giffords.
What effect the update will have depends largely on enforcement by the Justice Department, particularly the ATF. Biden’s executive order directs Garland to provide additional clarification to the statutory definition of “engaged in the business” as it now appears in the Safer Communities Act.
“The President will continue to call on Congress to pass universal background check legislation,” the White House wrote in a fact sheet on the forthcoming executive order. “ In the meantime, he is directing the Attorney General to do everything he can to ensure that firearms sellers who do not realize they are required to run background checks under existing law, or who are willfully violating existing law, become compliant with background check requirements.”
Clarifying that definition, even if enforced, won’t ensure that every gun sale is subject to a background check. Private sales, in most states, will still be allowed to proceed without a check, and unscrupulous dealers, even if registered, could sell guns without performing the required check, could knowingly sell to straw purchasers, or alter their sales records, as has been the case in the past. Our reporting has shown that the ATF has routinely let dealers off the hook for such violations. And in the few cases in which licenses were revoked, some dealers continued selling firearms, often by transferring their license to a family member or a business partner. The order takes aim at those dealers, too, directing the DOJ to implement a plan to prevent them from continuing to sell firearms.
“To be fair, ATF so rarely revokes a license that these cases are few, but clearly problematic,” said Chipman. They’re “good low-hanging fruit.”
Biden’s executive order aims to provide the public with more information on federally licensed dealers who have violated the law. He’s directing Garland to publicly release ATF records from inspections of firearms dealers cited for violations of federal laws. “This information will empower the public and policymakers to better understand the problem, and then improve our laws to hold rogue gun dealers accountable,” the White House said.
Chipman told The Trace: “It is high time that ATF prioritizes the rights of Americans to keep their communities safe rather than providing public relations cover to an industry that does little to prevent deadly outcomes with their legal but lethal products.”
What else is in the executive order?
Despite the attention on Biden’s effort to increase the number of background checks, the freshest elements of the executive order deal with the gun industry, particularly manufacturers, and how they market their guns and run their businesses. In a portion of the executive order aimed at “holding the gun industry accountable,” Biden is set to direct the DOJ to use its purchasing power to “further firearm and public safety practices.”
Exactly what that means is unclear. In a summary of the executive order, the White House wrote: “The president is directing the secretary of defense to develop and implement principles to further firearm and public safety practices through Department of Defense (DOD) acquisition of firearms, consistent with applicable law.”
The White House did not respond to a request for comment seeking more information, but it’s possible that the DOD could use its lucrative contracts with gun manufacturers as leverage to bolster new technologies like microstamping or other “smart” technologies, which they have long resisted. It could also mean that Biden wants the DOD to influence gun companies to self regulate in other ways.
The president also asked the Federal Trade Commission to issue a public report on firearm marketing, specifically analyzing how gun manufacturers market firearms to minors and how manufacturers market firearms to all civilians using military imagery. The FTC, however, is an independent agency, and the president’s request is simply an encouragement, not a directive.
One gun company received widespread public criticism for marketing a “JR-15” — a kids’ version of an AR-15 style rifle. Following the outcry, Senators Dianne Feinstein and Ed Markey, both Democrats, wrote a letter to the FTC urging it to investigate. Such marketing is not isolated to guns like the JR-15: the company that manufactured the AR-15 style rifle used by the Uvalde, Texas, shooter in May 2022 also marketed to parents and their children in a tweet a week before the shooting.
Biden is also directing his cabinet to develop a proposal for how the federal government can better support communities after a mass shooting. There’s currently no coordinated federal mechanism to meet the needs of communities after a shooting, unlike how Federal Emergency Management Agency is able to respond after a natural disaster to provide direct support.
Elsewhere in the order, Biden directs the Department of Transportation and the DOJ to come up with a plan to reduce the risk of firearms theft during shipment. He also instructed federal law enforcement agencies to issue stricter policies requiring the submission of data to the National Integrated Ballistics Information Network, or NIBIN, a database that allows for law enforcement to compare ballistic evidence to but has not been widely adopted.