It appears that retired judge Andrew Napolitano is convinced that President Obama's actions are blatant law-writing and hence unconstitutional, but let's take a look at the relevant law. Here it is. More or less, it says that someone must be in the business, which I interpret to mean "capable of earning a living from firearms." In other words, the subsequent statement that it does not apply to occasional sellers is redundant.
Now let's take a look at the executive order as implemented by the ATF. Note first of all that this guidance is specifically stated to have no regulatory effect, which is interesting coming from, ahem, a regulatory agency, to put it mildly. It's also of note that both the law and the non-regulation don't give thresholds for needing a license--it's imply whether one is conducting it as a business. So really the law and regulation are both a mess, politely speaking, in terms of having a law actually correlating with the risk of large number of firearms making their way into the hands of criminals.
That aside, it is my view that since the law specifically exempts several classes of sellers from the regulation, that expanding background checks to cover all sales online, at gun shows, and the like is a direct contradiction of the law, and hence Obama's action is (once again) un-Constitutional. This is especially the case since the guidelines were issued as such and not as regulations.
Also important is the fact that most criminals either get their guns legally with a background check involved, steal them, or buy them from sellers who simply don't care the weapon is going to a felon. So the end result of the new "guidelines" is less than bupkus--more or less, it simply ensures that the Obama policy of ignoring real gun crimes like the "Fast and Furious" scandal will continue, but otherwise law abiding people who desire to sell a few firearms will be harassed by the BATF.
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