By W. R. (Bill) Collier Jr- With his January 5th announcement of “executive actions” regarding guns, President Obama offered a sometimes tearful defense of greater limits, common sense gun safety measures, on gun ownership, especially for criminals and people with mental illness. His proposal was presented as ensuring mentaly ill people do not obtain firearms and closing a loophole that allows people, he said, to buy arms online without a background check.

The heart of his proposal comes down to allowing medical professionals to report patients whom they deem mentally unfit to the national criminal background check system and broadly expanding the definition of a “business” in order to require more gun sellers to obtain a Federal Firearms License and perform background checks.

But the specific language of these rules he has proposed is left to much interpretation. As the Attorney General, Lorreta Lynch, stated, even someone selling just one gun could be defined as a “business” under these rules. As for the mental health screening, it seems to allow for a scenario in which the citizen who is reported on goes into the database and then, if they try to buy a firearm, they must appeal their inclusion and, it is argued, prove their mental fitness.

In the absence of the actual rules, it is difficult to discern the actual potential impact of these rules. What is more, the President’s statement about being able to legally buy guns online without a background check was quickly proven to be untrue. In fact, online gun auction sites must require sellers to send the gun they sell to a local (brick and mortar) gun shop. Next, once the gun arrives, the buyer must go through a background check before the dealer give them the gun they purchased. Even an FFL holder who sells guns online must ship their wares to a local dealer because the background system depends on a face to face verification of identity. The only guns sold online without a background check are sold illegally.

And so, in the absence of the ACTUAL rules some have raised red flags. The basic objections are that it could be rather too easy to have your name submitted as mentally unfit if you confide any emotional and mental health concern to your doctor and that by making it too easy to label anyone who sells even their own gun a “business” the “secondary” gun market would dry up.

The proposal does not give the person reported for mental health concerns a presumption of innocence, as it were, but allows for any health official or provider to report anyone and then seems to place the burden of proof on the accused. While many Americans would prefer that we do mental health screenings, few are likely to want to do so in a manner that seems to make it rather easy to get on that list and rather difficult to get off that list.

The President has proposed that the purpose of expanding the definition of a “business” is meant to ensure that every gun buyer goes through a background check. However, as to online sales, which he cited, this is already in place. Secondly, a similar mechanism as applies to online gun sales could apply to private gun sales- individuals who sell guns would go to a local dealer, with the buyer, who would go through the background check before being handed the gun.

It has been argued that this latter measure is more words than action because, it is said, the President cannot redefine the definition of a business and that, as a result, this changes nothing. But the fact is, without seeing the final rule, which must be promulgated, this cannot be confirmed and, if it does in fact change nothing, why then propose it?

The more important question being raised is: why didn’t the President simply apply the same rule for online sales to local gun sales and why did he misrepresent the way guns are sold online? His approach seemed to be to dissuade sellers in the first place, because obtaining an FFL is expensive and time consuming.

Speaking with gun control advocates on background, who did not wish to distance themselves publicly from the President, a common theme was “this is a waste of political capital.” Many would have preferred that, instead of vague rules about sellers being businesses, the President focus on simply requiring all gun sales be processed by an FFL holder. The fear is that rendering all or most private gun sellers a “business” would encourage a black market while making private gun sellers use an FFL holder as the middle man (or woman) for a $10 fee would encourage private gun sellers to comply with the background check system.

Until we see final rules, however, just what the President has proposed to enforce is open to interpretation, but, on its face, it appears to have not satisfied its actual aims- the mental health provision has made millions of people afraid to confide anything to health care providers and the approach of expanding the definition of “business” to some or all of those now considered private gun sellers may in fact drive people underground.

It is possible, however, that the rules in their final form will protect people from being presumed mentally unfit and that the expansion of the definition of a business will only really catch people whom common sense would show are making money as a gun seller. But for those who wish to have every gun sale go through a background check, these rules may make little headway.