What exactly is the "Gunshow Loophole"?

[Kimio]

I keep hearing this thrown around, and it typically has me puzzled. The antis toss this sound bite around stating that buying a gun at one of these events does not require a background check, thus making it easier for criminals and other ne're do wells to get their hands on a firearm? Does this argument hold any kind of water? I've seen a number of members here state that it does not, but I do not have a clear understanding of where either side is getting their supporting facts on the matter.

I ask, simply because I have a friend whom I was discussing the topic of gun control and how the current laws relate to the sale of firearms at such events. I realized that I really don't know much about the process involved with gun purchases/trades at these events.

Some clarifications would be appreciated.

 

[CowTowner]

It really doesn't exist. But here's what anti's claim it is as best as I can figure it out.
Because BATFE rules do not require a background check for private sales, I can go to a gun show and sell my gun to another person as an individual without calling NICS. This does not apply in states where private sales also require a background check by state law.
Since no one is breaking the law, it isn't really a loophole. It's a legal private sale unless state law dictates otherwise.

 

[wogpotter]

It's massive misinformation they use to cause panic.
I have many liberal friends & other than "Knowing one exists" they have never ever been able to tell me exactly what they think it actually is in detail.

The synopsis seems to be you can buy anything at a gun show because its "illegal everywhere else" with no kind of anything other than a *nudge, nudge, wink, wink*, secret handshake or something they are kept in the dark about because only gun owners actually know the secret procedure & passwords.

They insist & get quite vocal about it "Knowing it can be & is done all the time with no fear or the law". When I challenge them to actually show up at a gunshow of their choice & prove it to me they never do. I guess it would cause disbelief if they saw the dozens of NICS checks being called in at gun shows because they simply don't understand (or want to believe) the real process.

The closest I've ever heard of in reality is that private transactions of non licencable items can be conducted without any additional rules than the exactly same transaction anywhere else. Basically if its legal in the area its legal at a gun-show as well, if it isn't then it doesn't suddenly become legal just because its at a gun show.

Every show I've ever been to has signs stating clearly that all transactions must comply with all federal, state & local laws, but to the believers that's just part of a smokescreen to hide the "real deal"!

 

[Kimio]

With that I mind, can you please help me formulate a good argument against this? I am kind of at a loss on how to counter some of these claims. Are there specific law(s) that I can reference explicitly stating the legalities of such transactions or what have you? I can already hear the rabble of how anyone whom has a criminal record can easily buy a piece from such events (which seems to be what is being spouted). While I can ask them to prove that such a thing happens or that they prove that it's that easy, they can easily turn it around and ask me to prove that there are laws and regulations in place denying such things from occurring.

 

[wogpotter]

Its not quite that easy as the laws vary state to state & even locally.

I usually counter with the statement I made here:
"If its legal in the street its also legal at a gun show. If its not legal on the street it's not legal at a gun-show. So, as the law applies to the street, your home, or place of business (as long as its not a gun shop) or anywhere else how can it be a gun show loophole if it isn't unique to a gun show?"
They usually can't answer that question.
If they argue further I ask them to accompany me to a show with a witness of their choice. Then I ask them to do the setup for whatever "loophole" they are referencing. The only condition I apply is the witness must give a truthful report of how the visit worked out.

That usually kills the argument stone dead instantly.

 

[Glenn E. Meyer]

The original presentation was that you could buy guns from dealers without a check at the gun shows. That was obviously not true but it is still out there.

More sophisticated antigun proponents acknowledge that now but argue that the show is a concentrated point for dubious private sales. Thus the show facilitates bad folks making easy gun purchases and is an attractive nuisance. Such arguments have been made by cities to close down shows in city controlled venues. It has also led to calls for all sales at a show to go through a NICS check - even person to person.

Thus, if you want to counter the arguments:

1. You need to correct the first point

2. You need to argue why the private sales at shows are OK with no NICS check. Remember that some states want all sales, even private, to go through background checks.

Thus, there is technically not a loop hole as there is no requirement in all states for a NICS check on all sales. But that won't influence the second point in argument.

 

[Kimio]

Glenn, can you please elaborate the legality and why it's okay for no NIC's check for the second point, or reference me to some material/documents I can cite to validate some of this?

I typically like having credible sources to try and back up my claims.

 

[Glenn E. Meyer]

I don't have the law at hand - but a search on NICS rules would bring it up. I'm sure our legal folks have the ATF procedures at hand.

 

[JimDandy]

Sure, it holds water. But so does a colander. 18 U.S. Code § 922 - Unlawful acts is probably a good starting off point. You have to get down there a ways for the background check system. About to 18 U.S. Code § 922 (t)

On Point 2, I think Glenn was talking about the proverbial parking lot. If you meet John Q Public in the gun show, why do you need a NICS check inside but not if you meet him in the parking lot before either of you even get inside.

To be honest, the best counter for debating the gun show loophole is going to one. If your friend doesn't know guns, make him some flashcards with a half dozen or better of the most commonly used crime guns from the TIME article, and run the show with him. Any time he sees one of them on a counter, have him ask if the seller is a dealer or a private individual.

The "loophole" is the theory that IF you can find what you want, and IF it's being sold, and IF the seller is NOT a dealer, a criminal can buy it without a background check. So let them have a go. Send them on a search of the several thousand vendors in there looking for an old Smith and Wesson 38/357 wheelgun, or a Bryco Arms .380 etc and not for sale by a dealer.

 

[Tom Servo]

The Brady Act, which mandates the NICS background check system, was an addition to the Gun Control Act of 1968. The GCA expanded some of the requirements on professional dealers of firearms that had been in effect since the FFA of 1938. Those included the necessity for a license, record-keeping requirements, and other standards. It also clarified that individuals were free to sell personal firearms, so long as "repetitive" selling for a profit wasn't a "source of livelihood."

The Brady Act says that dealers must perform a NICS check (or equivalent) before transferring a firearm to a non-licensee. That applies not only to transactions taking place on their premises, but to off-site sales (like gun shows) as well.

If a dealer sells a gun at a gun show, he still has to do the paperwork and NICS check. There's no loophole there.

In the leadup to the Brady Act, there was talk of having the NICS check apply to all sales, including private sales. This was obviously unworkable, and supporters of the Brady Act accepted the current model, which only governs dealer behavior.

They agreed to the exemption for private sales. They knew about it. Therefore, the exemption does not constitute a loophole.

Charles Schumer's repeated assertions that a loophole exists are patently false. This is simply a dishonest piece of rhetoric.

As for the idea that private sales for gun shows are a source of crime guns...nope. The Department of Justice (not the NRA or some evil pro-gun organization) has done several consistent studies on the matter. Less than 1% of crime guns come from gun shows [pdf file, page 6].

Gun shows aren't the problem. The fact that some behavior, somewhere isn't covered by government regulation steams gun-control advocates, so they lie to encourage regulation on that behavior.

 

[Spats McGee]

Others have hit the highlights, but I'll reiterate a few of them:

• The "gunshow loophole" does not exist. The claim by the antis is: There is some magic loophole in gun laws that allows any person to buy any firearm that he can find at a gunshow without a background check. This is patently false.
• If I buy a firearm from an FFL from his business stock, I have to go through NICS. Period. (I'm afraid that I'm a little fuzzy on how things work if an FFL is selling a firearm from his personal collection, so I'll leave that to others.) If I buy it at his brick-and-mortar store, I have to have a NICS check. If I buy it at the gunshow, I have to have a NICS check. If I order it online, or it otherwise crosses state lines, it has to go through an FFL for . . . you guess it, a NICS check.
• If I buy a firearm from a priviate individual, I don't have to go through NICS. Period. It doesn't matter if I buy it from him in his living room, in the parking lot of the grocery store, or at the gun show. It's a private sale. (My state does not require background checks on private sales, but some states do.)

. . . .2. You need to argue why the private sales at shows are OK with no NICS check. Remember that some states want all sales, even private, to go through background checks.

Glenn, can you please elaborate the legality and why it's okay for no NIC's check for the second point, or reference me to some material/documents I can cite to validate some of this?

I typically like having credible sources to try and back up my claims.

I'll jump in on this one. Glenn's second point is that private sales may be done without background checks. Why is that legal? The short answer is because there's no law that says otherwise.

The (or at least "my") longer answer goes something like this:

• My firearms are my property. Aside from what's written in law, such as not selling them to known felons or across state lines (without an FFL being involved), I am under no obligation to ask the gov't's permission to dispose of my own property.
• I am not engaged in the business of buying or selling firearms, so I am not subject to the same laws and regulations to which FFLs are subjected.
• As Tom points out, exempting private sales from the NICS check was a compromise reached years ago. The fact that the antis don't like the result doesn't mean that they didn't agree to it earlier.

 

[Armorer-at-Law]

Also be careful of the "unlicensed dealer" buzzword thrown about by antis. This is an oxymoron. Some people seem to think that if you have more than one firearm for sale, you must be in the business and a "dealer." If you are an individual selling your private collection, not as a business, you are not a "dealer" and do not need a "license." If you are in the business of buying and selling firearms, then you need a license (FFL) and operating that business is already illegal under federal law. If you have an FFL, then you have to follow federal law (Form 4473 and NICS check, unless exempt under state law) for every firearm you sell.

 

[Kimio]

Okay that makes sense. I can see an argument pointing out that the individual selling his/her property has the sole discretion to sell their firearm to another individual in the first place, and may make their own judgements based on the situation at hand.

I can see another argument being formulated, that a criminal could masquerade as a law abiding citizen to purchase said firearm from a person in a private sale. A seller doing so would then be aiding a criminal in obtaining firearms (which is of course illegal).

That being said, would that be considered a "loop hole"? Even so, you can't really police a private sale if that is the case, loop hole or no loop hole. The only way you'd be able to police such a things is to require registration of all known firearms and developing a system so you'd know where they'd be at all times. (Which is just out and out insane and impossible).

The criminals would likely ignore such a law to begin with, which makes further regulations moot.

Countering that (my brother tossed this at me) the antis would likely argue stating that if that were the case we should abolish all gun laws because the do nothing and are pointless, simply due to criminals not following them in the first place?

A vicious cycle that never ends it seems.

 

[Tom Servo]

I can see another argument being formulated, that a criminal could masquerade as a law abiding citizen to purchase said firearm from a person in a private sale.

That could happen. I'm sure it has. However, where is the wisdom in punishing millions of law-abiding people because of a few isolated incidents? By that logic, we would fight drunk driving by lowering the national speed limit to 35 and imposing a $5000 excise tax on all new car sales.

That being said, would that be considered a "loop hole"?

A loophole is defined as "an ambiguity or inadequacy in the law or a set of rules." Imagine your state classifies cars and trucks, but not motorcycles, as automobiles. You pass a law that says "the speed limit for automobiles shall not exceed 35 mph." Motorcyclists are not affected by this. That would be a loophole because it was an unintentional oversight.

On the other hand, if you agree to exempt motorcycles during the drafting of the law, you don't get to shout "loophole" afterwards.

Countering that (my brother tossed this at me) the antis would likely argue stating that if that were the case we should abolish all gun laws because the do nothing and are pointless, simply due to criminals not following them in the first place?

I've gotten that snotty retort from them as well. It's usually accompanied by dramatic eye-rolling and a very dismissive tone.

My response is a condescending, "of course we shouldn't. We both know that. We already have good laws on the books to punish the criminal use of firearms. The problem is that enforcement is spotty at best. I will gladly see my tax dollars put towards pursuing measures that are more than symbolic. Will you?"

 

[carguychris]

Also be careful of the "unlicensed dealer" buzzword thrown about by antis... If you are in the business of buying and selling firearms, then you need a license (FFL) and operating that business is already illegal under federal law.

+1. Kimio, FWIW, the official regulatory definition of the term "engaged in the business" of dealing in firearms has been discussed on this forum numerous times. Here's the most recent go-around:

http://thefiringline.com/forums/showthread.php?t=548789

I can see another argument being formulated, that a criminal could masquerade as a law abiding citizen to purchase said firearm from a person in a private sale. A seller doing so would then be aiding a criminal in obtaining firearms (which is of course illegal).

Under federal law, the seller only commits a crime if he/she knowingly transfers the firearm to a prohibited person. IOW it's illegal for the buyer but not necessarily for the seller.

That being said, would that be considered a "loop hole"?

Fundamentally, no. Per Merriam-Webster, a "loophole" is:

...an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded...

Source: http://www.merriam-webster.com/dictionary/loophole

Current federal law is deliberately structured to allow private intrastate sales to take place without a NICS check or the involvement of a FFL. There is no ambiguity or omission involved. Unlicensed private sales are a feature, NOT a bug.

[EDIT: I didn't intend for this to be redundant; Tom Servo evidently beat me to the punch.]

 

[Kimio]

To just be clear, I'm in no way supporting what the anti's are saying, I'm just throwing out arguments that I can see them or have had anti-gun types throw at me on various other topics.

My brother has expressed numerous times that he is not against guns per say, but is against nut jobs and what have you from getting a hold of one. For whatever reason, at the time I had that particular debate, I failed to point him towards the Lautenberg Amendments.

The counter point typically always reverts back to (at least with my brother) that extreme pro gun folks are hand tying politicians (namely pro-gun control folks) from implementing more regulations and making an effort to stop horrible things from happening. He acknowledges the laws are not working, but seems to fail to fully comprehend that what we need is to have the laws already in place to be enforced, not more to bandage the leak that's already occurring.

When I address the fact that even then, we're not attending to the root of the problem, that being society itself, he says it's easier to fill a divot than a crater (not the exact expression he used but it serves the point at the moment).

 

[wogpotter]

I can see another argument being formulated, that a criminal could masquerade as a law abiding citizen to purchase said firearm from a person in a private sale. A seller doing so would then be aiding a criminal in obtaining firearms (which is of course illegal).

That being said, would that be considered a "loop hole"?

My take on that is simple, if it is illegal it isn't a loophole. Loopholes allow the law to be "gotten around legally" by creating a specific circumstance where otherwise illegal activities are legal & breaking a law is still illegal so there is no loophole!

 

[Tom Servo]

My brother has expressed numerous times that he is not against guns per say, but is against nut jobs and what have you from getting a hold of one.

We've heard that one thrown around quite a lot. The answer doesn't lie in more regulations on guns; it lies in addressing issues like mental health and greater enforcement of existing laws. Those things aren't as glamorous for a politician as being able to say "I passed a law!"

The counter point typically always reverts back to (at least with my brother) that extreme pro gun folks are hand tying politicians (namely pro-gun control folks) from implementing more regulations and making an effort to stop horrible things from happening.

If they can prove that their proposed regulations will stop horrible things from happening, I'll listen. However, both Vice President Biden and Senator Feinstein admitted that the laws they proposed wouldn't do anything to stop future mass shootings. Those soundbites are pretty easy to find on YouTube.

They're not pushing regulations to stop bad things from happening. They're pushing regulations because bad things happened, and that gives them political leverage to push their pet agendas. Viewed through that lens, it's pretty morbid and opportunistic.

 

[Spats McGee]

To just be clear, I'm in no way supporting what the anti's are saying, I'm just throwing out arguments that I can see them or have had anti-gun types throw at me on various other topics.

I don't think anyone here is accusing you of joining the antigun crusade, Kimio.

My brother has expressed numerous times that he is not against guns per say, but is against nut jobs and what have you from getting a hold of one. . . . .

Ask him to define "nut jobs." This topic can get really sticky when you get down to the details, but the fact remains that anyone who has been adjudicated mentally defective, or involuntarily committed to a mental institution is already prohibited from possessing a firearm. 18 U.S.C. 922

If he thinks that anyone who wants a gun should have to undergo a psych eval, that's a whole different kettle of fish. Who gets to do the evaluations? Who gets to decide what a disqualifying factor might be? Who bears the cost? At what point does any of that begin to infringe upon a constitutionally-guaranteed right? How long before someone pushes the idea that "if you want a gun, it means that you're predisposed to violence, and therefore disqualified from owning one?"

. . . . He acknowledges the laws are not working, but seems to fail to fully comprehend that what we need is to have the laws already in place to be enforced, not more to bandage the leak that's already occurring. . . .

So our federal government has already publicly stated that it doesn't have the time to prosecute "paper crimes" (straw purchases), but he wants to enact more laws? How, exactly with those same folks find the time to prosecute crimes under these hypothetical new laws?

Personally, I'm not inclined to jump through any more hoops. I'm not inclined to pay any more fees, have any more folks nosing around in my background (than I already have), drive to my FFL for any extra transfers than I already have to. I haven't shot anybody. I haven't threatened to shoot anybody. All of the new gun control legislation would place additional burdens on those just like me, those who haven't done a thing to deserve the extra burdens. Have him read: Okay, I'll play.

 

[Armorer-at-Law]

I can see another argument being formulated, that a criminal could masquerade as a law abiding citizen to purchase said firearm from a person in a private sale.

This is in no way unique or limited to gun shows. Thus, how is this a "gun show loophole"? What does it have to do with gun shows?