I’ve noticed in recent weeks that the national gun control debate seems to be turning to the issues of the so-called “gun show loophole and “universal background checks.” These terms can be confusing and/or misleading to people not familiar with federal firearms laws (which can be rather convoluted at certain points) and, as such, I thought perhaps it would be helpful to clarify a few things.
To begin to understand the issue, a few things must first be defined. Federal law establishes a class of people who cannot legally purchase or possess a firearm. Such people are known as “prohibited persons” and this class includes people who have been convicted of a felony, people convicted of certain misdemeanors such as domestic violence, people who have been adjudicated mentally defective, illicit drug addicts, illegal aliens, and fugitives from justice. When a person buys a gun from a business, that business must have a Federal Firearms License (FFL) and the purchaser must fill out a form called a 4473, show a photo ID, and undergo a background check via telephone through the National Instant Criminal Background Check System (NICS) based on the information provided on the 4473 such as name, date of birth, address, place of birth, and physical description. FFL holders are required by law to have the purchaser fill out the 4473 and to call in the NICS check regardless of whether they sell a firearm at their own storefront or at another venue such as a gun show. 18 USC 921(a)(21)(C) requires that anyone who “devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms” must have an FFL. However, the law also specifies that someone who “makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms” need not have an FFL. Unfortunately, federal law fails to clearly define the difference between “dealing in firearms as a regular course of trade” and “occasional sales, exchanges, and purchases.”
It is imperative that one understand that the term “gun show loophole” as it is used is a misnomer. The law regarding gun sales at a gun show is no different than it is at any other venue. If anything can be accurately described as a “gun show loophole” it is the poorly-written law that fails to clearly define the difference between regular and occasional sales. As such, the issue really isn’t about gun shows, but rather private party sales in general.
This whole issue becomes easier to understand if we put a few things in perspective first. First and foremost, it must be understood that under our current laws, any time a prohibited person acquires a firearm; at least one person has already committed a crime. Not only is it illegal for a prohibited person to acquire a firearm under any circumstance, but it's also illegal for someone to knowingly supply a firearm to someone that they have reason to believe is a prohibited person.
Secondly, private party sales are but one means for a prohibited person to acquire a firearm. Theft, illegal sales by unscrupulous FFL holders, and straw purchases are other means which come readily to mind (a straw purchase is a crime in which a person called a “straw man” fills out the 4473 and undergoes the NICS check, but purchases the firearm with money supplied to them by another person with the intent of delivering said firearm to said third party). Straw purchases seem to be the preferred method of some criminals including Mexican Drug Cartels. This is likely because straw purchases are rarely prosecuted and because the criminal’s selection and cost of firearms is not limited to what can be found on the used, private party market. Since acquiring a firearm by any means is illegal for a prohibited person, why should we think that one would care which law they're breaking?
Third, the government has given us no reason to believe that they would enforce a law requiring universal background checks any more effectively than they've enforced the existing gun laws. If you are a prohibited person, you cannot fill out the 4473 truthfully and still appear able to purchase a firearm. Lying on a 4473 is a crime, but very few people who are denied during their NICS check are ever prosecuted for lying on a federal form. I have to wonder how many prohibited people have turned to other means like theft, straw purchase, or private-party sales only after being denied on a NICS check. Perhaps if we prosecuted more of the people who lie on the 4473, possession of firearms by prohibited people would be less of an issue since they would already be in jail before they had the chance to acquire a firearm by that means.
Finally, the only way to make Universal Background Checks even remotely enforceable would be through registration and even that could be circumvented by a clever enough person. There are currently somewhere between 390 and 465 Million privately owned guns in this country and they will likely remain in circulation for decades. Without registration, all a person would need to do in order to avoid prosecution for an illegal private sale is claim that the sale took place prior to the law's enaction. If anyone thinks for a moment that, without a registration requirement, gun control advocates will ever admit that Universal Background Checks simply don't work, then that person hasn't been paying much attention to the their playbook. Instead, they'll blame the failure of Universal Background Checks on the lack of registration and push for it later.
Even with registration, the law could be circumvented by the seller simply reporting the gun stolen. Since possession of an unregistered gun would already be a crime, why should the buyer care whether the seller reports the gun stolen or not since he's already in possession of illegal goods?
Registration is an extremely poor idea for a number of reasons. First, it allows for easier intimidation of lawful gun owners such as we recently saw with The Journal News in New York. Such an abuse would never have been able to happen without New York's registration requirement.
Secondly, it facilitates confiscation of lawfully owned weapons by over-zealous officials during a state of emergency such as we saw in New Orleans after Hurricane Katrina. While such confiscation may be illegal, it would have to be overturned through the courts later and that would be of little help to the people who need their firearms then and there.
Finally, and most insidiously, it opens the door to selective enforcement and abuses of power by corrupt officials. Anyone who believes that officials in all levels of government could be trusted not to selectively enforce such laws only when politically convenient and only against those whom it is convenient for them to prosecute is deluding themselves. Without getting too political, the precedent has already been set by the executive branch of our government that enforcing laws which are deemed not to be politically expedient is optional. Why should we believe that gun laws would be treated any differently than the other laws which are selectively enforced?
So, when everything is considered, I can only come to the conclusion that Universal Background Checks, through an attempt to ban activities that are already illegal, would only place undue burden on law-abiding gun owners. Going the asinine route of making gun crimes "double illegal" isn't going to phase a criminal who, by definition, does not respect the law. The way to stop criminals from committing crimes is not to pile on more redundant and unenforceable laws, but to punish them for the crimes they've already committed. Personally, I think that if someone represents such a danger to society that they cannot be trusted to own a gun, then that person should remain locked away from society until they are no longer a danger. Violent criminals need to either remain incarcerated or, if the crime is severe enough, be executed and the violently mentally ill need to remain institutionalized until they can be treated to the point of no longer being dangerous.
