At Reason, Jacob Sullum reports:

According to the watchdog group Empower Oversight, which cites two unnamed “whistleblowers” at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the agency is working on regulations that would go all the way, purporting to require background checks for all private gun sales. It is hard to see how the ATF can do that “without additional legislation.”

If Biden tries this, he will be violating the Constitution in no fewer than four different ways. First, as Sullum notes, he will be acting without statutory authority, which is in contravention of Article I’s clear declaration that “all legislative Powers herein granted shall be vested in a Congress of the United States.” Not only is there is no federal law that comes even close to regulating the private intrastate sale of firearms, but, when Congress has considered the idea in recent years, it has explicitly rejected it (see: Manchin-Toomey). The most recent changes to the law in this area were extremely modest, and were accurately described by the Congressional Research Service as having been “intended to require persons who buy and resell firearms repetitively for profit to be licensed federally as gun dealers, even if they do not do so with ‘the principal objective of livelihood.'” This definition can clearly not be applied to most private sellers, and there is no reading of the U.S. Code that could lead one to any other conclusion. Biden knows this, which is why neither he — nor any other Democrats — have ever suggested otherwise.

Beyond that, Biden would be attempting to use powers that the federal government has not been granted by the Constitution, and to do so in violation of the Second Amendment. Washington D.C. has no freestanding power to regulate firearms (which would make Biden’s move a violation of the enumerated powers doctrine); there is no world in which private, intrastate sales and transfers could be legitimately deemed to be interstate commerce; and, under the Bruen decision, gun regulations must comport with the original meaning of the Second Amendment, as it was understood in 1791 when it was introduced by James Madison, and in the immediate aftermath of the Civil War, when it was protected by Congress in the 1866 Civil Rights Act and the two Freedmens Bureau Acts and then incorporated via the 14th Amendment. At no point in American history has Congress presumed to superintend the private sales of firearms within the same state. It still hasn’t.

For now, I shall hold my fire on this. I have not seen the memo, or seen confirmation that it even exists. Perhaps it does not. Perhaps, if it does, it has been misdescribed. If it does exist in the declared configuration, however, it will represent yet another example of President Biden’s breathtaking penchant for lawlessness. When this story broke, it was suggested to me that the ultimate aim here is “political”: that Biden knows the move would be unconstitutional, but intends to try it nevertheless in the hope that it will gin up his base. If true, that’s a disqualifying offense. Before they are allowed to wield power, our presidents are obliged to take an oath. There is no provision within that pledge that permits them to set it aside during an election year.