How Biden could tighten gun control without Congress

Experts say President Biden could use executive authority to restrict background checks and regulatory authority to slow down arms sales. 

Gun control wasn’t part of the new president’s first batch of dozens of executive orders, but less than a month into the administration, Biden officials are meeting with advocates demanding gun reform. 

Domestic policy adviser Susan Rice and White House public engagement director Cedric Richmond met virtually with gun control groups Wednesday, reiterating their commitment to "common sense steps." Officials familiar with the meeting said Biden was prepared to use any avenue, including executive action, to take these steps. 

But Americans are divided on the matter -- 57% support stricter gun laws, a four-year low, according to a November Gallup poll. 

Though Democrats enjoy a razor-thin advantage in the Senate, new gun legislation would be hard pressed to clear the 60-vote filibuster hurdle. 

Second Amendment advocates say Biden doesn’t have the authority to ban assault weapons or magazine capacity by executive order but could use regulatory authority to restrict guns without Congress’ input. 

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"I think that President Biden will try to get away with as much as he can with executive orders," Alan Gottlieb, founder of the Second Amendment Foundation, told Fox News, adding that his organization is "very prepared to go to court" if Biden oversteps. 

"What we’re expecting him to do is anything with foreign commerce -- if the firearm is being imported in or magazine or ammo is being imported in -- he could by executive order try to do something in that nature," Gottlieb continued. 

Gottlieb said Biden could use the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to tighten regulations he says are "beyond the scope of what Congress has given him the authority to do," in which case he says the foundation is prepared to sue. But the White House has yet to nominate a leader for the ATF. 

He also said the administration could slow walk the background check process, which is overloaded as gun sales are on the rise. The growth has been attributed to anticipation that Biden will act on gun control and fear and uncertainty amid the coronavirus pandemic and civil unrest, amplified by concerns of a cutdown on police presence.  

Gun control advocates say the White House could take executive action to expand the background check system by redefining who is in the business of selling guns. They say they want to see the administration reclassify what is considered a gun in an effort to shut down the "ghost gun" market. Ghost guns are not subject to serial numbers or background checks because they are assembled from kits that include one unfinished piece, typically the receiver.

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"Throughout his presidential campaign –– and his entire career –– President Biden has consistently demonstrated that ending gun violence is one of his top priorities, and we have no doubt that he will take executive action on this issue soon," John Feinblatt, president of Everytown for Gun Safety, said in a statement to Fox News. "That starts with strengthening our background check system, shutting down the market for ghost guns, and investing in community-based efforts to address skyrocketing rates of city gun violence." 

The group calls for Biden to prioritize funding for community violence intervention programs as city gun violence has skyrocketed over the past year. 

Everytown is also calling on the White House to begin to address the "Charleston loophole." The "loophole" allows gun dealers to complete gun sales if a background check takes longer than three days. The group argues that 90% of background checks are completed in minutes, but those that take longer than three days are four times more likely to be denied. 

The group is asking the White House to require all gun dealers to notify the Department of Justice before these sales take place and to require the FBI to alert state and local law enforcement of all denied background checks in their jurisdiction.

Biden has championed his record on gun control in the Senate, where he helped pass the Brady Bill of 1993, which enacted the modern background check many are calling to reform, and helped pass the original assault weapons ban. 

Asked last week if Biden would take a legislative approach or executive action to tighten gun laws, press secretary Jen Psaki only repeated a campaign line that Biden had taken on the National Rifle Association twice and won. 

And on Tuesday Psaki reiterated that gun control is "a priority to him on a personal level." She said the White House had not yet proposed a legislative package and declined to project the likelihood or timeline of such legislation passing. 

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Biden earlier this week said he "will not wait" for another mass shooting to take action on gun control. 

"This administration will not wait for the next mass shooting to heed that call," Biden said on the three-year anniversary of the shooting at Marjory Stoneman Douglas High School in Parkland, Fla. "We will take action to end our epidemic of gun violence and make our schools and communities safer."