Gun show loophole

This article is about a U.S. political concept. For information about U.S. gun shows themselves, see Gun shows in the United States.

Gun show loophole is a term referring to private sellers at gun shows not being required to perform a background check on private buyers. The practice is consistent with a longstanding practice of private commerce in the United States. Private sellers are however forbidden under federal law from selling firearms or ammunition to persons they know or have reason to believe are felons or are otherwise prohibited from purchasing firearms. Seven states have passed laws requiring all gun sales to go through a Federal Firearms License (FFL) holder before being transferred; in most states, however, only guns sold through an FFL holder are required to go through an FFL holder before being transferred.

Legislation

On November 6, 1998, Bill Clinton issued a memorandum for the Secretary of the Treasury and the Attorney General expressing concern about the fact 25 percent or more of sellers at gun shows are not required to run background checks on potential buyers. This was called the "gun show loophole". Clinton said that it made gun shows prime targets for criminals and gun traffickers, and he requested recommendations on what actions the administration should take, including legislation. These Departments reported gaps in current law and recommended extending the Brady Law to "close the gun show loophole"

In July 2009, Representatives Michael Castle and Carolyn McCarthy introduced the Gun Show Loophole Closing Act of 2009 (H.R. 2324) in the U.S. House of Representatives. Senator Frank Lautenberg introduced similar legislation, the "Gun Show Background Check Act of 2009"(S. 843), in the U.S. Senate. As of October 2009, the House version of the bill had 35 co-sponsors (mostly Democrats) and the Senate version had 15 co-sponsors, all Democrats.

On January 3rd of 2013, Representative Carolyn McCarthy of New York introduced the Gun Show Loophole Closing Act of 2013 - H.R.141. The bill, which has 47 co-sponsors, amends the federal criminal code to make it unlawful for any person to operate a gun show unless said person meets certain criteria. It also imposes record-keeping requirements on gun show operators, grants the Attorney General more authority over gun show operators, increases criminal penalties, and authorizes the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives to hire additional investigators to carry out inspections of gun shows. The bill was referred to the Subcommittee on Crime, Terrorism, Homeland Security, And Investigations on January 25th of 2013, but has not been passed.

As of August 2013, 17 U.S. states require background checks at gun shows. Seven states require background checks on all gun sales at gun shows: California, Colorado, Connecticut, Illinois, New York, Oregon, and Rhode Island. Four require background checks on all handgun purchases at gun shows: Hawaii, Maryland, New Jersey, and Pennsylvania. Six require individuals to obtain a permit that involves a background check to purchase handguns: Iowa, Massachusetts, Michigan, Minnesota, Nebraska, and North Carolina. The remaining 33 states do not restrict private, intrastate sales of firearms at gun shows in any manner.

Issues, stances, and positions

Current

Opponents of gun control say there is no gun show loophole, only a long-standing tradition of free commerce between private parties that heretofore has not been restricted in the context of secondary, intrastate firearm sales. The National Rifle Association (NRA), citing federal government studies that found less than 1 percent of imprisoned felons said they obtained their guns from shows, says that when gun control supporters refer to the gun show loophole they are not really talking about criminals getting guns, but about the American people owning guns. They challenge federal jurisdiction in intrastate transactions between private parties, which they say exceeds the federal power created by the Commerce Clause.

According to Garen J. Wintemute, director of the Violence Prevention Research Program at UC Davis, "There is no such loophole in federal law, in the limited sense that the law does not exempt private-party sales at gun shows from regulation that is required elsewhere." Wintemute said, "The fundamental flaw in the gun show loophole proposal is its failure to address the great majority of private-party sales, which occur at other locations and increasingly over the Internet at sites where any non-prohibited person can list firearms for sale and buyers can search for private-party sellers." According to the Firearm Owners Protection Act, a Federal Firearms Licensee may legally sell firearms as a private-party seller at gun shows in the United States, provided the firearm was transferred to the licensee's private collection at least one year prior to the sale. Hence, when a personal firearm is sold by an individual who also happens to hold an FFL, no ATF Form 4473 is required.

A National Institute of Justice study released in December 1997 reported that 2 percent of criminal guns came from gun shows. Similarly, a report by the U.S. Bureau of Justice Statistics in 1997 on federal firearms offenders reported 1.7 percent of crime guns are acquired at gun shows.

Past

On May 27, 1999, Wayne LaPierre, executive vice president of the National Rifle Association, testified before the House Judiciary Committee Subcommittee on Crime, saying: "We think it is reasonable to provide mandatory, instant criminal background checks for every sale at every gun show. No loopholes anywhere for anyone. That means closing the Hinckley loophole so the records of those adjudicated mentally ill are in the system. This is not new or a change of position or a concession. I have been on the record on this point consistently, from our national meeting in Denver to paid national ads and position papers, to news interviews, and press appearances."

Use of the gun show loophole was advocated in the summer of 2011 by al-Qaeda operative, Adam Gadahn, who said: "America is absolutely awash with easily obtainable firearms. You can go down to a gun show at the local convention center and come away with a fully automatic assault rifle, without a background check, and most likely without having to show an identification card". In fact, however, individuals cannot legally buy a fully automatic firearm anywhere in the U.S. without undergoing background checks, obtaining approval from the Bureau of Alcohol, Tobacco, Firearms and Explosives, and paying a tax.

Individuals on the U.S. terrorism watch list are prohibited from air travel but may purchase firearms.

Ongoing

Some supporters of gun control are pushing for universal background checks. The National Rifle Association argues that a universal background check system for gun buyers is both impracticable and unnecessary, but an effective instant check system that includes records of the adjudicated mentally ill would prevent potentially dangerous people from getting their hands on firearms.

United States Attorneys have offered a wide range of proposals to address the gun show loophole. These include the following:

• allowing only FFLs to sell guns at gun shows so that a background check and a firearms transaction record accompany every transaction;
• strengthening the definition of “engaged in the business” by defining the terms with more precision, narrowing the exception for “hobbyists,” and lowering the intent requirement;
• limiting the number of private sales permitted by an individual to a specified number per year;
• requiring persons who sell guns in the secondary market to comply with the record-keeping requirements that are applicable to FFLs;
• requiring all transfers in the secondary market to go through an FFL;
• establishing procedures for the orderly liquidation of inventory belonging to FFLs who surrender their license;
• requiring registration of non-licensed persons who sell guns;
• increasing the punishment for transferring a firearm without a background check as required by the Brady Act;
• requiring the gun show promoters to be licensed and maintain an inventory of all the firearms that are sold by FFLs and non-FFLs at a gun show;
• requiring that one or more ATF agents be present at every gun show; and
• insulating unlicensed vendors from criminal liability if they agree to have purchasers complete a firearms transaction form.

See also

• Brady Handgun Violence Prevention Act
• National Firearms Act
• Firearm Owners Protection Act

Further reading

• Cooper, Michael; Schmidt, Michael S.; Luo, Michael (2013-04-10). "Loopholes in Gun Laws Allow Buyers to Skirt Checks". New York Times.
• Kessler, Glenn (2013-01-21). "The stale claim that 40 percent of gun sales lack background checks". Washington Post (blog).