President Obama, close the 'gun show loophole'

Story highlights

  • Mark O'Mara: Obama reportedly mulling action on closing gun show loophole. If his executive powers legally allow it, he should do so
  • He says the gun lobby should embrace a security measure that actually protects gun rights rather than interferes with it

Mark O'Mara is a CNN legal analyst and a criminal defense attorney. The opinions expressed in this commentary are solely those of the author. Watch President Obama as he joins Anderson Cooper and a live audience for a CNN Prime time event: Guns in America, Thursday Night, 8 Eastern

(CNN)President Barack Obama reportedly is planning to take executive action to close the so-called "gun show loophole" in federal gun laws. A White House spokesman says that "our policy folks, our lawyers, and our experts" have been working to see what is possible.

Mark O'Mara
Efforts to do this in the past have failed in Congress, so the question is: Can the president lose the gun show loophole on his own authority? If he can, then he should.
In 1968, President Lyndon B. Johnson signed some very common-sense gun control legislation. It defined who shouldn't have guns -- felons and those guilty of domestic violence, to name just a couple; and it defined who could sell guns -- only federally licensed dealers, who were required to perform background checks.
    It did allow individuals to sell guns from their own "personal collections" (without a background check) if they weren't otherwise in the gun trade, but over time the interpretation of what was considered a "personal collection" became very broad. In 1986, the Firearms Owners' Protection Act opened the doors for licensed dealers to sell from their own "personal collections," without background checks, and the loophole became entrenched.
    Obama to announce new executive action on guns
    Obama to announce new executive action on guns

      JUST WATCHED

      Obama to announce new executive action on guns

    MUST WATCH

    Obama to announce new executive action on guns 01:06
    In short, a provision in the 1968 Gun Control Act designed to allow private gun owners to sell their property has been stretched and abused to create a thriving unregulated gun trade.
    I am a gun owner, and I have a concealed weapons permit -- though I do not carry as a matter of course.
    We can pay the necessary homage to the NRA and the gun rights lobby, which is apparently "required" whenever we talk about a restriction on gun ownership. But after that, we must acknowledge that expanding background checks for people who want to buy firearms is not only long overdue, it is absolutely necessary.
    There is no reason, in this age of instant access to background data, that we don't use this information to help keep guns out of the wrong hands. The gun lobby should embrace a security measure that actually protects gun rights rather than interferes with it.
    I dispute any suggestion that background checks would prevent law-abiding citizens from purchasing guns. The only other objection to closing the loophole is that it allows people to hide their guns from the government -- suggesting that if the government knows you own guns, they will know where to come to confiscate them.
    Such a paranoid fear pales in comparison with the now-proven fears that shoddy and ineffective background check requirements and the "gun show loophole" allows those who wish to do us harm to easily arm themselves and do it.
    There is no doubt that we are in a new age of domestic and international threats. Our enemies don't just come from abroad, they are among us, and they are armed with guns, purchased in this country. It is time to admit that at least some of the firearms used to commit heinous atrocities against our citizens fell into the wrong hands because of lax security over gun ownership.
    Fail-safe background checks would ensure that felons do not own guns, that people who have domestic violence issues go through an additional review before gun ownership, that mental health issues be a consideration in determining gun ownership and that those people who have been identified by the intelligence and security agencies as threats are denied access to guns.
    Yes, guns will still sometimes get into the hands of those who will do harm. But such a system will, in time, diminish that likelihood -- and it will send a signal that our country takes gun ownership -- and the enormous responsibility that comes with it -- seriously.
    This is not some opportunistic attempt to limit gun ownership based upon the ever more obvious arc of tragedies caused by criminals and terrorists with firearms.
    I have long argued -- even as a criminal defense attorney -- in favor of strict sentencing enhancements for gun use during a crime. I'm also sensitive to the legitimate concern that restrictions will disproportionately affect law abiding citizens.
    I consider my gun ownership a right vested in me by virtue of my citizenship, but I also regard it as a privilege I can lose if I don't guard it and protect it properly. To protect our guaranteed Second Amendment rights to gun ownership, we have to take reasonable, good faith measures to keep guns out of the hands of those who would abuse that privilege.
    Even after the rash of mass shooting we have seen, Congress has proven incapable of adapting reasonably to the current climate of gun violence. If the President can legally use his executive powers to require more stringent screenings, he should do it.