According to Attorney General Lynch, you may now have to register with the federal government if you sell “as few as one or two [firearms].”

True to his promise of bypassing Congress, President Obama announced a handful of executive actions regarding gun control Tuesday morning, and like all rules and regulations, the devil is in the details.

What will this mean for the average law abiding American citizen?

Under current Alcohol, Tobacco, and Firearms (ATF) regulations, the most pivotal, if innocuous, words read: “engaged in the business” of buying and selling firearms. Up until today, this phraseology has been explicitly defined by Congress to protect Second Amendment freedoms. You would not be recognized as a gun dealer, for example, if you simply made a casual sale to a friend or traded to furnish a personal collection. News breaking yesterday from a conference call with Attorney General Lynch, however, details the Obama administration’s attempt to unilaterally redefine what it means to be a firearms dealer.

“[E]ngaged in the business,” according to Lynch, means: “It can be as few as one or two [firearms] depending upon the circumstances under which the person sells the gun.”

This would mean that any American seeking to comply with the new ATF regulation would have to apply for a Federal Firearms License (FFL). Applications for an FFL license run for $200 and have a host of requirements from inspections and interviews to audits and detailed record accounting. Obtaining said license also means that a private citizen in his or her private home could be subject to the same ATF scrutiny and surveillance that befall true firearm distributors; both have the same licensing and are granted no distinction under the government’s watch.

The practical effect of defining “engaged in the business” as selling one or two firearms creates a covert universal background check system, as every purchase would have to go through an FFL, thus essentially destroying the private gun market.

While universal background checks may sound safe and efficient, the rub comes with actual enforcement. How does the ATF enforce universal background checks? How does the ATF ensure that a gun you purchased did in fact come from an FFL dealer?

The only way to enforce these regulations is ultimately with a registry. Obviously the Obama administration is not proposing a national gun registry outright, but that is the logical conclusion of the enforcement requirements of their proposed regulations.

What will this mean for the average law abiding American citizen?

It will be tougher to sell a gun;

You may be jailed if you lose a gun and don’t fill out the proper federal paperwork; and,

It will be more difficult to pass a background check if somebody has put information into a federal database, valid or not, questioning your mental health.

And there are two very important first principles that President Obama’s anticipated gun control regulations and executive orders offend: Separation of Powers and The Second Amendment to the Constitution.

The Obama Plan

Little is known about the president’s plans, because he has refused to share the details before he launches them later this week—that is, other than with interested lobbyists, friendly think tanks like the Center for American Progress, and his staff. Also, a select group of reporters have been given some details of the plans. Here is what we know.

This proposal is the centerpiece of President Obama’s assault on gun rights.

The Washington Post reports that “the package, which Obama plans to announce Tuesday, includes 10 separate provisions.” The New York Times reports “gun control advocates who have met with administration officials in recent days said they expected that the president would expand the definition of licensed gun dealers to include previously unlicensed vendors, so background checks are required for more gun purchases.” According to Reuters, “one option was a regulatory change to require more dealers to get a license to sell guns, a move that would trigger more background checks on buyers.” Politico reports: “On Tuesday, Obama is expected to tighten the definition about which types of gunsellers need to get a federal license and therefore conduct background checks on all sales, in a bid to narrow the so-called gun-show loophole.” So we know that the president is going to try to expand the definition of a gun dealer through an executive order or some other executive action.

This proposal is the centerpiece of President Obama’s assault on gun rights. The president is attempting to expand the definition of gun dealers to encompass average Americans who don’t sell guns for a living — a roundabout way to institute universal background checks. The next step for the gun control movement is to implement a comprehensive list of gun owners as a means to track all guns and prevent any prohibited persons from obtaining one.

It appears that President Obama is going to attempt to unconstitutionally redefine a provision in federal law that defines a gun dealer. According to the Law Center to Prevent Gun Violence, pursuant to 18 U.S.C. § 921(a)(21)(C) “The Gun Control Act of 1968 provides that persons ‘engaged in the business’ of dealing in firearms must be licensed. Although Congress did not originally define the term ‘engaged in the business,’ it did so in 1986 as part of the McClure-Volkmer Act (also known as the “Firearms Owners’ Protection Act”). That legislation defined the term ‘engaged in the business,’ as applied to a firearms dealer, as ‘a person 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.’ Significantly, however, the term was defined to exclude 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 personal collection of firearms.” The president is acting unconstitutionally if he tries to redefine the law in any way inconsistent with the clear language Congress has previously passed.

According to the reports, the president is also going to announce a new reporting requirement for lost or stolen guns and new requirements for mental health information to be included in background checks for guns.

The Constitution does not allow the head of the Executive Branch, the president, to change definitions in law.

Speaker of the House Paul Ryan put out a statement that read in part: “While we don’t yet know the details of the plan, the president is at minimum subverting the legislative branch, and potentially overturning its will. His proposals to restrict gun rights were debated by the United States Senate, and they were rejected. No president should be able to reverse legislative failure by executive fiat, not even incrementally. The American people deserve a president who will respect their constitutional rights — all of them. This is a dangerous level of executive overreach, and the country will not stand for it.” Spot on.

Separation of Powers

The Legislative Branch of the federal government legislates and the Executive Branch executes the law. The Constitution does not allow the head of the Executive Branch, the president, to change definitions in law. Our nation has three defined branches of government in the Constitution and if the president tries to act like a King and seize the lawmaking power that begins with Congress, he is acting in an unconstitutional manner.

Redefining words already enshrined in law as a way to pass initiatives similar to those in the Manchin-Toomey gun control bill — rejected by the Senate in 2013 — is not permitted in our constitutional republic. According to Reuters, “Obama is igniting a political firestorm by bypassing Congress with the measures, which are likely to redefine what it means to be a gun dealer and spark increased use of background checks … [T]he president’s planned use of executive action launches his final year with a move that Republicans say exemplifies misuse of his powers.”

Clearly, some of the president’s proposals that subvert the letter of the law will be patently unconstitutional and should not stand.

The Second Amendment

The Supreme Court has spoken on the natural right of American citizens to keep and bear firearms. In the landmark case D.C. v. Heller decided in 2008, the Court held that the Second Amendment embodied an individual right to posses a gun. In the follow up case, McDonald v Chicago decided in 2010, the Court held that the Second Amendment applied to the states. The Second Amendment right to self-defense is part of the Bill of Rights and a fundamental right.

Speaker Ryan, in his statement, argued that these executive actions have the potential to infringe on constitutional rights: “Ever since he was a candidate, President Obama’s dismissiveness toward Americans who value the Second Amendment has been well-documented. He acts as if the right to bear arms is something to be tolerated, when in truth — as the Supreme Court reaffirmed in 2008 — it is fundamental. The same goes for the Constitution and its limits on executive power.”

So not only are some of these ideas being implemented contrary to the Separation of Powers, they may be unconstitutional restrictions on the right of self-defense.

How to Stop Obama

First of all, Congress should not resort to a lawsuit. Congress has the power of the purse and the power to impeach. If any member of Congress advocates that a lawsuit is the only remedy to fight the president, he or she should be ignored. A lawsuit is a way for Congress to shirk responsibility and shrink away from the fight.

Congress can pass a bill to terminate this executive overreach, but the president will veto that. Passing a bill would be a good first step. Ultimately, they are going to have to use the appropriations process to defund all the president’s actions. They also can impeach the president for his unconstitutional actions. Removal from office is clearly not going to happen, but nothing prevents Congress from impeaching the president as a means to show that they believe his actions to be unconstitutional.

The great danger in the president’s actions is that it will be difficult for average Americans to sell a gun to their neighbor or give one to a family member. If a person who sells a few guns at a gun show loses a gun, and maybe does not discover the loss for a while or fills out the federal paperwork inexpertly, he or she can be locked up as a criminal.

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