Clinton's Gun Control Plan Would Include Executive Action

At an event in Florida on October 2, Hillary Clinton admonished voters to take on the National Rifle Association. Clinton released a gun control policy on Sunday night. Joe Skipper/REUTERS

"I've got no problem with people who are responsible gun owners," Democratic presidential candidate Hillary Clinton said during a New Hampshire Town Hall organized by NBC. "We'll take the law as it is, but we'll have to look to see what we can do to make sure that we prevent these kinds of terrible crimes."

In the aftermath of last week's Umpqua Community College shooting, Clinton touted her recently released gun violence policy Monday morning before voters in the key primary state during a Today show town hall.

She and other Democratic candidates and policymakers have become increasingly vocal about gun control since the latest mass shooting, spurred on by President Barack Obama's emotional national address. Clinton entered the Second Amendment fray with a statement that seeks to differentiate her from a rising opponent for the Democratic nomination, Bernie Sanders, as well as from Obama.

In the statement, Clinton promises to go a step beyond "pushing" Congress for legislative reforms—by taking executive action, something the president has not said he will do.

"If Congress refuses to act, Clinton will take administrative action to require that any person attempting to sell a significant number of guns be deemed 'in the business' of selling firearms," the policy reads.

Declaring gun show dealers and online retailers "in the business" by executive order would legally require them to comply with existing mandates for background checks in place for gun stores.

"I think it's 40 percent or so of the gun sales in America are done online, they're done at gun shows, they're done by people selling out of the back of their cars basically," Clinton said during the town hall.

The policy also promises to repeal the Protection of Lawful Commerce in Arms Act, which protects gun manufacturers and retailers from legal action over violent or criminal uses of their products. Sanders supported the act while a member of the House of Representatives in 2005; Clinton voted against it in the Senate. Sanders has said punishing gun manufacturers would be like punishing hammer manufacturers if "somebody beat somebody over the head with a hammer."

To win the Democratic primary, the former secretary of state must shore up her support within a liberal base increasingly attracted to the socialist Sanders, who is arguably to the right of her on gun control because of the protection act. She faces her most serious challenge from Sanders in New Hampshire, where gun rights advocates cast a Patrick Henry–size shadow.

Just as Obama has used his bully pulpit to agitate for reforms in the wake of shootings, most of Clinton's plan consists of promises to simply "push Congress" on gun control policies typically advocated by Democrats. These include universal background checks, a renewal of the assault weapons ban passed by her husband in 1994 and removal of the so-called Charleston loophole, a provision in the Brady law that permits persons with criminal records to legally acquire guns if the FBI fails to notify a dealer of the purchaser's criminal record within three days of initiating a background check.

Even if Clinton were to pursue an "in business" declaration as president, universal background checks will not have an easy path through the judiciary, much less the Congress. The Supreme Court, in D.C. v. Heller, determined that the Second Amendment broadly protects individual gun ownership. The decision reversed years of contrary constitutional rulings, but Clinton doesn't think the ruling would legally preclude her proposals.

"Even in that decision, Justice Scalia said that [it] doesn't mean there can't be restraints on gun purchases," she said.

Clinton argued that the general public is in favor of background checks, citing polls that show such measures have bipartisan support, including from gun owners. But creating new gun policies at the national level is all about whether the question is framed as a protection of public safety or a potential violation of rights. Framing the national debate is the National Rifle Association's specialty, and even if Clinton's new policy helps distance her from Sanders in the primaries, her gun control proposals would eventually face harsher critics than the Vermont senator's.