Friday, December 28, 2012

The Gun Show Loophole

One of the things gun control advocates often call for is closing the "gun show loophole".  There isn't a gun show loophole to speak of in firearm laws, the term is used to mislead people into thinking anyone can buy anything they want at a gun show without any controls.  That's not true.

When people say they want to close the gun show loophole, it's hard to take them seriously in debate.  Using that inflammatory term shows the user is either pushing partisan propaganda or misinformed on the subject.  There's far too much emotion in today's gun control debate, so I wanted to clarify what happens at gun shows and how that applies to laws today.

In this conversation, we need to break people into three groups.  The first group is Federal Firearm Licensees (FFL), otherwise known as gun dealers.  They are legally allowed to participate in the business of buying and selling firearms, and there are a great many laws regarding that business.  On any sale to a non-licensee there are requirements that have to be met.  They have to correctly answer the questions on a federal 4473 form.  They have to pass a FBI background check (NICS check).  They have to have a state or federal issued picture ID that shows their current address.

The second group of people are prohibited persons.  There are a number of things you can do to become a prohibited person- being a felon, under an order of protection, an illegal immigrant, dishonorably discharged from the military, committed to a mental institution or a number of other factors you can read here.  If you are a prohibited person you cannot legally own or even handle a firearm. 

The last group we have is the rest of the public that is neither a FFL nor a prohibited person.  This is the bulk of citizens that are legally permitted to own guns. 

So let's talk about legal transfers of firearms and what they entail.

If a FFL wants to transfer a gun to a FFL, there is a paperwork requirement.  Gun dealers exchange inventory quite often.  Firearm distributors have to maintain an FFL, and most gun shops buy from distributors, so a transfer is taking place, which is recorded.

If a FFL wants to sell a gun to a non-licensee, it includes paperwork, ID check, and a background check.  Some states impose additional restrictions like waiting periods.

A prohibited person is not legally permitted to buy a gun from a FFL or a legal owner.

If a legal gun owner wants to sell or gift a gun to another legal owner within their own state, they are allowed to do that under law.  This is often referred to as a private transfer.  Here is the regulation from the ATF website:
A person may sell a firearm to an unlicensed resident of his State, if he does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law. A person may loan or rent a firearm to a resident of any State for temporary use for lawful sporting purposes, if he does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law. A person may sell or transfer a firearm to a licensee in any State.
 This last transaction is generally what people are concerned about when they want to close the "gun show loophole".  They want to restrict private transfers without background checks.

Gun shows are like any other shows.  If you've been to a computer show, a boat show or a scrapbooking show it's a similar experience.  The tables are mostly populated with dealers, and a few tables have an entrepreneur looking to sell some wares or get people aware of their product.  At a gun show, most of the dealers are FFL holders and they follow the same procedures they do when they sell in a gun shop.  As an anecdote, it's not uncommon for the ATF and local law enforcement to be present at gun shows in my area, so we have law enforcement on hand to monitor things.

Most sales at gun shows involve FFL's that do a background check.  I don't have a number, but in my area I'd say it's got to be 99% or greater.

When people say "gun show loophole" they are actually talking about private transfer that happen to take place at a gun show.  Why would a person want to sell a gun at a gun show?  Lots of reasons!
 - Maybe they don't know what it's worth, and at a gun show there are dozens of gun dealers present.  They can easily walk from table to table to ask if any dealers want to buy it.
 - If a person is walking from table to table they may be approached by a non-FFL to purchase the gun for sale.  According to the law this is a legal private transfer if the buyer is not a prohibited person.
 - Maybe they listed the gun for sale in their local paper and agreed to sell it to another legal owner.  Shockingly enough, some gun owners are a little paranoid and don't like strangers knowing where they live.  Offering to complete the transaction at a gun show is a good idea- it's a neutral place where both parties know guns are allowed.  That's a much better idea then meeting in the parking lot of a McDonalds or Walmart.

So here is the loophole, if there is one.  As mentioned above, a private transfer is legal if "A person may sell a firearm to an unlicensed resident of his State, if he does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law".  If a prohibited person misrepresents themself to a non-FFL gun seller they can acquire (illegally, mind you) a firearm in that manner.  If the seller doesn't have a reasonable cause to believe the buyer is prohibited, they are within legality.  This opens up the opportunity for prohibited people to break the law and buy a gun in that manner.  It's reasonable to expect if a person was going to break the law in that manner, they would be open to doing it at a gun show.  That's the gun show loophole.

So, rather than saying you want to close the "gun show loophole", you should state "I think private transfers should require a background check to prevent prohibited persons from acquiring firearms".  This will better communicate your desire and let everyone know you are educated on the subject.  It's a great way to start a rational discussion and not an emotional one.  It clearly states an improvement to the law (from a gun control perspective) that is achievable and would have measurable results.

Many gun owners go above the law when they do private sales.  They require buyers to display a concealed carry permit or military ID.  They only sell to friends or family they know are legally allowed to own guns.  They contact a FFL to do the transfer so it includes a background check, which most will do for $30 or so.  I've always done one or more of those when I've engaged in private sales.

As far as my take on the subject, I see it as a reasonable restriction on firearm sales between non-licensees.  However, I don't think it will have much of an effect, if any.  Today, if a prohibited person purchases a gun from an individual, a law is being broken.  If the law changes so private transfers without background checks are prohibited, then we just have two laws being broken.  Is that extra law going to prevent all those sales?  Some?  Any?  It's hard to say.

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