IN THE NEWS

Nov 13, 2015

With gun violence in the United States at epidemic proportions, a group of the nation’s top constitutional scholars, organized by the American Constitution Society for Law and Policy (ACS), sent a letter to the White House calling on President Obama to take executive action to curb gun violence. 

The law professors note there are numerous actions the administration can take which are fully consistent with the constitutional limitations on the President’s power, which preserve the Second Amendment rights of Americans, while reducing gun violence and saving lives. 

“These top law professors make a powerful legal argument for executive action at a time when people are dying and gun violence goes unchecked,” said ACS President Caroline Fredrickson. “The president has implored Congress to act, but it is clear the leadership will instead pander to the fringe gun lobby. He can take the steps, which are fully within his constitutional power, to fight this epidemic.”

In their statement to the White House, the group of 23 law professors highlights several important actions within the administration’s power that would ensure the federal gun laws are applied consistent with congressional intent. Among these steps are:

  • Clarifying which gun sellers are “engaged in the business” of dealing firearms, and therefore must obtain federal licenses and conduct background checks on would-be gun purchasers. Just as services like eBay and Craigslist allow Americans to offer a broad range of goods for sale online, numerous Internet services facilitate the sale of large numbers of firearms by unlicensed dealers, frequently without conducting any background checks. The failure of these high-volume sellers to obtain licenses and conduct background checks creates a ready source of firearms for dangerous criminals and other prohibited persons, and fuels the illegal gun trafficking that arms criminals and undermines efforts to reduce gun violence. The Administration should act to close this dangerous loophole.
  • Directing the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and Federal Bureau of Investigation (FBI) to identify which prohibited persons are most likely to commit crimes after failing a background check when attempting to buy a gun; to prosecute these individuals for illegally attempting to obtain firearms; and to inform state law enforcement whenever a prohibited person in their state fails a background check. It is common sense that law enforcement has a strong interest in knowing when anyone the law deems too dangerous to buy a gun attempts to do so. The Administration should act to ensure prompt and appropriate follow-up by law enforcement when prohibited persons attempt to buy guns.
  • Issuing guidance to ensure that the federal statute prohibiting gun possession by persons convicted of “misdemeanor crimes of domestic violence” is interpreted broadly to prohibit gun possession by convicted abusers, regardless of their marital status. In 2009, and again just last year, the Supreme Court made clear that Congress intended the federal domestic violence misdemeanor statute to be applied broadly to protect victims of abuse from gun violence. To effectuate this Congressional directive, the Administration should clarify that the term “similarly situated to a spouse” in the domestic violence misdemeanor law should be interpreted consistent with the Violence Against Women Act.

The American Constitution Society for Law and Policy (ACS), founded in 2001 and one of the nation's leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals dedicated to making the law a force to improve lives of all people. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit www.acslaw.org.

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