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2020 Democrats Vow Action on Guns, But There’s Little to Do Without Congress

Democratic candidates are promising bold executive action on guns if they win the presidency.

2020 Democrats Vow Action on Guns, But There’s Little to Do Without Congress
Students protest gun violence in the U.S. (Photographer: Scott McIntyre/Bloomberg)

(Bloomberg) -- Democratic candidates are promising bold executive action on guns if they win the presidency as they respond to two mass shootings in 24 hours last weekend. But they may only manage timid steps.

After eight years of half-measures by President Barack Obama -- some of which have been undone by a Republican Congress and the Trump administration -- experts say there’s not much more executive power the president has left to control the sales and use of guns.

No president can ban assault weapons and high-capacity magazines and require universal background checks by executive order. Those are the most sought-after changes by gun-control advocates since the shootings in El Paso, Texas, and Dayton, Ohio last weekend. But would require action by Congress, where gun measures have stalled year after year.

That hasn’t stopped the 2020 Democratic candidates from promising new gun safety measures -- with or without the help of Congress.

2020 Democrats Vow Action on Guns, But There’s Little to Do Without Congress

Kamala Harris says she’ll give Congress 100 days to pass gun safety legislation before she signs an executive order expanding background checks.

Amy Klobuchar says she would take executive action to close what’s called the domestic violence “boyfriend loophole” in gun sales.

And Elizabeth Warren says she’ll do “do everything I can by executive order” on guns, but hasn’t explained what that might entail.

“Most of what I’ve seen proposed is either meaningless, or it would not be lawful without legislative support,” said Jonathan Adler, a law professor at Case Western Reserve University.

“There might be more that can be done in terms of identifying potentially dangerous individuals” -- so-called red flag policies, he said -- “but even that likely requires legislative action.”

With the candidates largely agreeing on the need for greater gun control, the biggest difference among them is how they plan to go about it.

Acknowledging Limits

One candidate acknowledging the limits of executive power is Joe Biden. He led Obama’s gun violence task force after the Sandy Hook shooting in 2012, and says the Obama administration took 30 different executive actions on guns.

2020 Democrats Vow Action on Guns, But There’s Little to Do Without Congress

Those actions disappointed some gun safety activists who wanted to go further, but Obama was worried about legal challenges. His executive actions on immigration were being overturned by federal courts at the time.

“We didn’t figure out a way you can by executive order say, you can no longer purchase this weapon, you can no longer have a clip with this many bullets in it. You got to get legislation to do that,” Biden told CNN on Monday.

And even some of the executive actions Obama did take didn’t last, as Biden noted.

“The problem with that is the next guy comes along and wipes it out and that’s what this guy did,” Biden said. For example, an Obama order allowing the Social Security Administration to share data on mental-illness disability claims with the Justice Department’s gun background check database was undone by the President Donald Trump.

Undoing Regulations

Trump used a rarely used procedure under the Congressional Review Act to wipe out 15 regulations Obama ordered in his last months in office, including the sharing of mental-illness claims. As a result, a Democratic president would need Congress to re-institute that rule.

Obama also considered changing the definition of gun dealers to partially close what’s become known as the gun-show loophole. Under current law, someone who sells guns must apply for a dealer’s license if they are “engaged in the business” of selling guns.

But then-Vice President Biden, who led the effort, ultimately decided against setting a hard minimum on the number of guns someone must sell to be considered a dealer. Instead, the Bureau of Alcohol, Tobacco and Firearms issued guidance about existing law.

Harris, the California senator and former prosecutor, wants to be more specific: Anyone who sells more than five guns a year must get a license -- and conduct background checks on their buyers. Such an action would almost undoubtedly be challenged in court.

The National Rifle Association says Harris is “pandering to anti-gun extremists.”

“And the executive power she would need to really implement her plan simply doesn’t exist,” the gun rights group said in a statement.

Gun Dealers

Harris also says she’ll take executive action to revoke licenses of dealers who break the law and revoke a 2017 Trump administration legal interpretation that someone can’t be denied a firearm simply for having an outstanding arrest warrant.

Klobuchar has introduced a bill in the Senate to close the “boyfriend loophole.” Anyone convicted of domestic violence on a spouse, former-spouse or live-in partner can be barred from buying a gun. The law doesn’t apply to romantic partners who aren’t married and don’t live together. The bill is unlikely to move before the election, so if she wins the presidency, she says, she will “take executive action to get it done immediately.”

Democrats are pledging executive action because besides winning the White House, the party would need to pick up 13 more seats in the Senate just to get a vote on gun legislation.

2020 Democrats Vow Action on Guns, But There’s Little to Do Without Congress

“I think what you’re seeing from a number of the candidates is a very real recognition that all of the legislative fixes we’re calling for are unlikely to make it through a Mitch McConnell-led Senate,” said Chelsea Parsons, a gun policy expert at the liberal Center for American Progress.

Warren said her first step on gun violence would be to call on the Senate to change its rules. “I will do everything I can by executive order, but I will also lead on the argument on getting rid of the filibuster so that by a majority vote we can do what the American people sent us there to do,” she told MSNBC on Monday.

Parsons said it’s good to hear candidates talk about executive actions.

“I think they make a big difference and the reason for that is we are dealing with a myriad of overlapping and interconnected problems with our gun laws. There’s no one big fix that will have the biggest impact,” she said.

And the issue is likely to take up more of the Democratic primary debate in the coming months, with several forums scheduled.

Michael Bloomberg, owner of Bloomberg LP, the parent company of Bloomberg News, founded and helps fund Everytown for Gun Safety, a nonprofit that advocates for universal background checks and other gun violence prevention measures.

--With assistance from Emma Kinery.

To contact the reporter on this story: Gregory Korte in Washington at gkorte@bloomberg.net

To contact the editors responsible for this story: Wendy Benjaminson at wbenjaminson@bloomberg.net, Joe Sobczyk

©2019 Bloomberg L.P.