Analysts: Obama's gun control options each have legal pitfalls

From Reuters:

The Washington Post and Politico reported late last week that one of Obama’s main proposals would require some unlicensed gun dealers to get licenses and conduct background checks on potential buyers. Current law exempts smaller dealers who often operate at gun shows and sell online.

Obama... could act through an executive order, which would be immediate and carry the force of law. It would also almost certainly prompt lawsuits ... claiming the president lacks the authority to change the legal definition of who must obtain a dealer’s license....

Obama could take the less risky path on guns by directing the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to redefine its guidance on who is considered a dealer under federal gun law. This would be advisory and lack the force of law, which would mean that prosecutors could not rely on it when pursuing small gun dealers....

Obama could choose an even more cautious route and direct the ATF to begin the formal administrative rulemaking process to change its regulations for who is considered a firearms dealer under the existing Gun Control Act. Agency action that includes the chance for public comment would create an enforceable rule that would likely pass legal muster, but that process probably would not conclude before Obama leaves office in January 2017....

The Second Amendment of the U.S. Constitution protects the right of Americans to keep and bear arms.

Regardless of what steps Obama might take to increase the number of dealers who must conduct background checks, legal experts said that he cannot accomplish his desired gun control agenda - like boosting oversight of gun show sales - through executive action alone.

Legal links of interest for the week ending March 15, 2013

Some of the stories about courts, the law and lawyers in the news this past week:

Open meetings laws force public agencies to share more materials: The new requirement, an amendment to the state open meetings law, mandates that all public agencies make their agendas available to the public in advance of their meetings, as well as supplemental meeting materials such as resolutions or department reports.

Wife of millionaire LI real-estate mogul gets judge to ripup her prenup: Longtime divorce lawyer Raoul Felder, who has never overturned a prenup in his three-decade career and has no involvement in the Petrakis case, called the decision “really rare” and precedent setting.

Will FDA Use Obamacare to Tax Americans’ Smartphones and Tablets: Leaders of the House Energy and Commerce Committee are concerned that FDA may subject more smartphones and mobile apps to regulation as medical devices, which could result in their being taxed under Obamacare and harm the innovation and economic benefits of the U.S. mobile marketplace.

Attorney wants to exclude Jews from Abdel Hameed Shehadeh’supcoming terror trial: Lawyer Frederick Cohn will ask a judge to bar Jews from the jury hearing the case against Abdel Hameed Shehadeh, who’s accused of lying about trying to join jihadists in Pakistan.

Can lawyers ethically blog about their cases? According to the decision issued by the Virginia Supreme Court, not only can Virginia lawyers ethically blog about their cases, they can even list the names of their clients when doing so, as long as their blog includes an appropriate disclaimer.

N.Y. Schools See Decrease in U.S. News Rankings: Bob Morse, director of data research at U.S. News, attributed much of the churn to a revised methodology involving the weight given to schools' success at landing their graduates in jobs.

Judge halts mayor's soda ban, calls it 'arbitrary and capricious': Judge Tingling said New York City Mayor Michael Bloomberg and the Board of Health overstepped their bounds, to enforce rules that should be established by the legislative bodies.

 For more on each of these stories, click the links above.

Federal Law May Force Obama to Make Bin Laden Pics Public

A number of news organizations, including AP, Fox and NPR, are claiming a federal open government law requires the White House to make public the photographs of a deceased Osama Bin Laden.

According to the Atlantic Monthly:

"Pictures of Osama bin Laden and other images from that mission would have compelling news value and public interest," said Dick Meyer, executive editor for news at NPR. "I can foresee circumstances or arguments that would lead us to refrain from publishing the images if we were to get them, but NPR should be in a position to make that decision and not simply accept the government's action."

The National Law Journal notes that national security claims might make the news groups’ difficult, but cites experts who say that the government may, ultimately, have to release the pictures, under the federal Freedom of Information Act (FOIA):

"Theoretically, they could win," said Scott Hodes, who from 1998 to 2002 was the acting unit chief of the Federal Bureau of Investigation's Freedom of Information/Privacy Act Section's litigation unit and is now a solo practitioner in Washington. "It will not be an easy decision. There are reasons on both sides."

The FOIA requires that all federal agency records be accessible to the public unless there exists a specific exemption....

In addition to news organizations, a number of groups have announces plans to file suit to obtain the materials, including the open government group Judicial Watch.

"President Obama's decision not to release the bin Laden photos is at odds with his promises to make his administration the most transparent in history," wrote the group. "Judicial Watch hopes its FOIA requests will provide a mechanism to release these records in an orderly fashion in compliance with the FOIA law. President Obama's reluctance to spike the football is not a lawful reason for withholding these historic public documents from the American people."

In recent history, from the Pentagon Papers to Wikileaks, the need to balance national security against the right of the citizens to open government is an ongoing, and important, public policy issue. Ultimately, as is so often the case, the issue will likely be decided in the courts.

Are iPads Violating Federal Record Keeping Laws?

“Apple’s iPad tablet computer could allow White House staffers to circumvent a law aimed at preserving all official communications,” according to a report at the Hill website:

It is unclear how many White House staffers have iPads and to what extent they are used for official business, but the issue highlights the difficulties of the Presidential Records Act, which has failed to keep up with changes in the way people communicate digitally.

The law mandates that all communications related to official business must be archived, and the administration’s policy is that White House staffers who use personal email or social-networking accounts to conduct official business must forward the messages for archiving to official accounts.

But there are few safeguards to ensure they do so....David Ferriero, the archivist of the U.S., said he isn’t comfortable with White House staffers determining for themselves what is and isn’t relevant for presidential records.

The issue facing the White House in this case is not unique. Many other government entities grapple with how to allow staff to use personal technology while staying compliant with “freedom of information” and government record-keeping laws.

In addition, while no one is accusing the White House of breaking the law, there have been attempts by government employees to use personal email accounts in ways that might circumvent open government laws.

In New York State, an opinion has been issued advising that that records of official business emailed to a private or home address are subject to the Freedom of Information Law. It would seem that the federal government, if it has not already, should follow suit.