Gun show loophole

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This article is about a U.S. political term. For information about U.S. gun shows themselves, see Gun shows in the United States.
Private seller holding a rifle at a gun show

Gun show loophole is a political term in the United States referring to sales of firearms by private sellers, including those done at gun shows.[1][2] The loophole refers to a perceived gap in the law with regard to sales or transfers of firearms between private citizens.[3] The term may also be referred to as the Brady Law loophole and the private sale loophole. Under federal law, private-party sellers are not required to perform background checks of buyers to verify that the buyer is not prohibited from possessing a firearm. Private sellers are also not required to record the sale or ask for identification. Federal law prohibits private individuals from selling a firearm to a resident of another state, or to someone they know, or have reason to believe, is prohibited from owning a firearm.[4] As of August 2013, 33 states do not require background checks for sales of firearms by private individuals, while 17 states and Washington, D.C. do require background checks for some or all private firearm sales.[5] This is in contrast to sales by gun stores and other Federal Firearms License holders, who are required by federal law to perform background checks of all buyers, and to record all sales, regardless of whether the sale takes place at a gun show or not.

According to a 1999 report by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) commissioned by President Bill Clinton, these legal transactions contribute to illegal activities, such as arms trafficking, purchases of firearms by prohibited buyers, and straw purchases.[6]

Generally, gun control advocates want to extend background check requirements to private sellers. Gun rights advocates say there is no loophole, and believe any federal law requiring background checks for sales of secondary market firearms between private citizens, whether at gun shows or not, would exceed the government's authority, be a prelude to gun registration, and endanger gun owners' Second Amendment rights.

Seven gun show loophole bills were introduced in the U.S. House and four in the Senate between 2001 and 2013, but none were passed.

Overview[edit]

Sometimes referred to as the Brady bill loophole,[7] the Brady law loophole,[8] the gun law loophole,[9] and, more recently, the private sale loophole,[10][11] the loophole generally refers to federal and state laws that allow for legal secondary market sales and transfers of firearms, without requiring a background check, between unlicensed private parties in the United States. Private-party sellers are not legally required to ask for identification, there are no forms to fill out, and no records need be kept. Unlicensed private parties cannot initiate a background check without the help of an FFL, except in Delaware, Nevada, and Oregon, where they may do so voluntarily.[12]

In 1999, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) said that these types of legal transactions contribute to illegal activities, such as arms trafficking, purchases of firearms by prohibited buyers, and straw purchases. Non-licensees are legally prohibited from selling a firearm to a non-licensed person whom the seller knows or has reasonable cause to believe is prohibited from owning a firearm, or does not reside in the state in which the seller resides.[13][14][15]

Background[edit]

In 1968, Congress passed the Gun Control Act (GCA), under which modern firearm commerce operates. The GCA mandated federal licenses for those "engaged in the business" of selling firearms, but not for private individuals who sold firearms infrequently.[16] It also mandated that licensed firearm dealers maintain records of sales of firearms.[16] Under the GCA, firearm dealers were prohibited from doing business anywhere except the address listed on their Federal Firearms License (FFL). An unlicensed person is prohibited by federal law from transferring, selling, trading, giving, transporting, or delivering a firearm to any other unlicensed person only if they know or have reasonable cause to believe the buyer does not reside in their State or is prohibited by law from purchasing or possessing firearms.[17][18]

In 1986, Congress passed the Firearm Owners Protection Act (FOPA), which relaxed certain controls in the GCA and permitted licensed firearm dealers to conduct business at gun shows.[nb 1] Specifically, FOPA made it legal for FFL holders to make private sales, provided the firearm was transferred to the licensee's personal collection at least one year prior to the sale. Hence, when a personal firearm is sold by an FFL holder, no background check or Form 4473 is required by federal law. According to the ATF, FFL holders are required to keep a record of such sales in a bound book.[21][22] The USDOJ said the stated purpose of FOPA was to ensure that the GCA did not "place any undue or unnecessary federal restrictions or burdens on law abiding citizens, but it opened many loopholes through which illegal gun traffickers can slip."[13][23][nb 2]

In 1993, Congress enacted the Brady Law, which instituted federal background checks on all firearm purchasers who buy from dealers. Personal transfers and sales by FFL dealers and unlicensed private sellers were not regulated by the Brady Act, but may be subject to other federal, state, and local restrictions.[25]

Early efforts[edit]

In 1996 the Violence Policy Center released Gun Shows in America: Tupperware® Parties for Criminals, a study that identified problems associated with gun shows.[26] The VPC study documented the effect of the 1986 "Firearms Owners' Protection Act" in regard to proliferation of gun shows, which resulted in "a readily available source of weapons and ammunition for a wide variety of criminals, as well as Timothy McVeigh and David Koresh".[27][28] According to the VPC, the utility of gun shows to dangerous individuals stems primarily from the exemption enjoyed by private sellers from the sales criteria of the Brady law, including a background check.[29] Analyzing data from 1997, the National Institute of Justice released a report saying that among state inmates possessing a gun, fewer than 2% bought their firearm at a flea market or gun show, about 12% from a retail store or pawnshop, and 80% from family, friends, a street buy, or an illegal source.[30] Attorney, and gun rights advocate for the NRA, Dave Kopel, said "gun shows are no 'loophole' in the federal laws," and that singling out guns shows was "the first step toward abolishing all privacy regarding firearms and implementing universal gun registration."[31]

On November 6, 1998, U.S. president Bill Clinton issued a memorandum for the Secretary of the Treasury and the Attorney General expressing concern about sellers at gun shows not being required to run background checks on potential buyers.[32] He called this a "loophole" and said that it made gun shows prime targets for criminals and gun traffickers. He requested recommendations on what actions the administration should take, including legislation.[13][32] These offices reported gaps in current law and recommended "extending the Brady Law to 'close the gun show loophole.'"[23] Their report included proposals put forth by United States Attorneys, which included:

  1. Allowing only FFLs to sell guns at gun shows so that a background check and a firearms transaction record accompany every transaction;
  2. 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;
  3. Limiting the number of private sales permitted by an individual to a specified number per year;
  4. Requiring persons who sell guns in the secondary market to comply with the record-keeping requirements that are applicable to FFLs;
  5. Requiring all transfers in the secondary market to go through an FFL;
  6. Establishing procedures for the orderly liquidation of inventory belonging to FFLs who surrender their license;
  7. Requiring registration of non-licensed persons who sell guns;
  8. Increasing the punishment for transferring a firearm without a background check as required by the Brady Act;
  9. 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;
  10. Requiring that one or more ATF agents be present at every gun show; and
  11. Insulating unlicensed vendors from criminal liability if they agree to have purchasers complete a firearms transaction form.

These proposals have not been implemented. The January 1999 report said that more than 4,000 gun shows are held in the U.S. annually.[13]:1 It said that between 50 percent and 75 percent of gun show vendors are FFLs and that the "majority of vendors who attend shows sell firearms and associated accessories and other paraphernalia."[13]:4 The report concluded that although most sellers at gun shows are upstanding people, a few corrupt sellers could move a large quantity of firearms into high-risk hands.[13]:17

Notable events[edit]

After the Columbine High School massacre on April 20, 1999, gun shows and background checks became a focus of national debate in the U.S.[33][34][35] On May 27, Wayne LaPierre, executive vice president of the National Rifle Association (NRA), testified before the House Judiciary 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." LaPierre has since said that he is opposed to universal background checks.[36][37]:118 Gun control advocates wanted to extend the background check requirement to nonlicensed firearms sellers at gun shows, too.[8]

The Virginia Tech shooting on April 16, 2007 again brought discussion of the gun show loophole to the forefront of U.S. politics,[38] even though the shooter passed a background check and purchased his weapons legally at a Virginia gun shop and via a Wisconsin-based Internet dealer.[39] Following the tragedy, Virginia Governor Tim Kaine and other authorities called on lawmakers to close the so called "gun show loophole".[40] A bill to close the gun-show loophole in Virginia was submitted, but eventually killed by legislators.[41] Since then, efforts by Virginia lawmakers to close the gun-show loophole have been repeatedly blocked by gun-rights advocates.[42]

Response[edit]

Those concerned about the shows believed they were a source of illegally trafficked firearms.[43][nb 3] Efforts to reverse a key feature of FOPA by requiring criminal background checks and purchase records on private sales at gun shows were unsuccessful.[45][46]

In January 2000, Kopel said that no proposed federal law would have made any difference at Columbine since the adults who supplied the weapons were legal purchasers.[47] Some gun rights supporters said that requiring background checks for all gun show sales was the prelude to registration and that their Second Amendment rights would be jeopardized.[48]

In 2008, Nicholas J. Johnson of the Fordham University School of Law, wrote:

"Criticisms of the 'gun show loophole' imply that federal regulations allow otherwise prohibited retail purchases ('primary market sales') of firearms at gun shows. This implication is false. The real criticism is leveled at secondary market sales by private citizens."[49]

The following year, gun rights supporters challenged federal jurisdiction in the intrastate manufacture and sale of firearms, ammunition, and accessories. In his dissent, Justice Clarence Thomas said "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers.".[50] For gun rights supporters there is no "loophole," but legal commerce under the status quo (like book fairs or car shows).[51]

In 2010, the Brady Campaign to Prevent Gun Violence said: "Because of the gun show loophole, in most states prohibited buyers can walk into any gun show and buy weapons from unlicensed sellers with no background check. Many of these gun sellers operate week-to-week with no established place of business, traveling from gun show to gun show."[52]:5 The NRA said that gun control supporters' objectives are to reduce gun sales and register guns.[24]

In 2013, former governor of Virginia, Tim Kaine, wrote:

"I was disappointed to see the Virginia legislature balk, largely under pressure from the NRA, at efforts to close the gun-show loophole that allows anyone to buy weapons without any background check. That loophole still exists."[53]

Recent developments[edit]

After the July 2012 Aurora shooting in Colorado,[54] the October 2012 Azana Spa shootings in Wisconsin,[55][56] and the December 2012 Sandy Hook Elementary School shooting in Connecticut, state and local debates regarding the gun show loophole resumed.[57] After the Aurora shooting, then president of the NRA, David Keene, said that such tragedies are often exploited by the media and politicians. He said, "Colorado has already closed the so-called 'loophole' and the killer didn’t buy his guns at a gun show."[58] The handgun in the Azana Spa shooting was purchased legally in a private transaction, not at a gun show.[59] The Sandy Hook shooter used weapons legally purchased by his mother.[60]:16[61] The head of a Minnesota gun owners group said in 2012 of a state legislator's effort to close the gun show loophole that doing so would only "impose unnecessary deprivation of liberty, hassle, delay, and cost" on the state's "legitimate gun owners."[62]

In 2013, Garen J. Wintemute, director of the Violence Prevention Research Program at UC Davis wrote, "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."[63]:104 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."[63]

Closing the gun show loophole has become part of a larger push for universal background checks to close "federal loopholes on such checks at gun shows and other private sales."[64] Some now refer to the gun show loophole as the "private sale loophole."[10][11][65]

The NRA says that a universal background check system for gun buyers is both impracticable and unnecessary, but an effective instant check system that includes records of persons adjudicated mentally ill would prevent potentially dangerous people from getting their hands on firearms.[66]

Legislation[edit]

Federal "Gun Show Loophole" bills were introduced in seven consecutive Congresses in 2001 (H.R. 2377,S. 890), 2004 (H.R. 3832,S. 1807), 2005 (H.R. 3540), 2007 (H.R. 96), 2009 (H.R. 2324, S. 843), 2011 (H.R. 591,S. 35), and 2013 (H.R. 141). Specifically, seven gun show loophole bills were introduced in the U.S. House and four in the Senate between 2001 and 2013. None passed.[67][68][69][70][71][72]

As of August 2013, 17 U.S. states and Washington, D.C., require background checks at gun shows.[73][5] 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 sales of firearms at gun shows.[74][75][76]

See also[edit]

Notes[edit]

  1. ^ According to the Council on Foreign Relations and a news report posted on the National Center for Policy Analysis' website, gun control advocates maintain that the gun show loophole appeared and was codified in FOPA.[19][20]
  2. ^ The National Rifle Association (NRA) says that the purpose of FOPA was to reduce burdens on gun dealers and record-keeping on gun owners. Chris W. Cox, chief lobbyist for the NRA Institute for Legislative Action, said: "To be sure, it's not a 'loophole,' because FOPA made clear no license is required to make occasional sales, exchanges or purchases of firearms for the enhancement of a personal collection or for a hobby. What some refer to as a 'loophole' is actually federal law."[24]
  3. ^ A report released in 2009, 10 years after Columbine, discussed the role that gun shows play in trafficking to Mexico.[44]

References[edit]

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  2. ^ Wintemute, Garen. "Background checks for firearm transfers" (PDF). ucdmc.ucdavis.edu. Retrieved 4 March 2015. 
  3. ^ Hale, Steven (January 13, 2013). "Gun shows, Internet keep weapons flowing around background checks". Retrieved 2 August 2015. 
  4. ^ "Top 10 Frequently Asked Firearms Questions and Answers", Bureau of Alcohol, Tobacco, Firearms and Explosives. Retrieved August 1, 2015.
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  6. ^ "Gun Shows:Brady checks and crime gun traces" (PDF). atf.gov. The department of justice & The department of treasury. Retrieved 4 March 2015. 
  7. ^ Cole, Richard (December 20, 1993). "Brady bill loophole removes waiting: Private gun-owners can sell their guns to anyone". The News (Boca Raton, Florida). Associated Press. Retrieved February 16, 2015. 
  8. ^ a b Pianin, Eric; Eilperin, Juliet (June 18, 1999). "House Votes to Weaken Senate Gun Show Checks". Washington Post. Retrieved February 16, 2015. 
  9. ^ Cole, Richard (December 26, 1993). "Gun Law Loophole Allows Immediate Delivery, No Background Checks : Arms: Private owners can sell their weapons legally anytime, to anyone. Shows are a common sales venue.". Los Angeles Times. Associated Press. Retrieved February 16, 2015. 
  10. ^ a b Fisher, Kristin (December 15, 2011). "Illegal Internet Gun Sales are Soaring in Virginia". WUSA9. Retrieved February 7, 2015. These Internet sales really are the new gun shows. 
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  14. ^ https://www.law.cornell.edu/uscode/text/18/922
  15. ^ https://www.law.cornell.edu/cfr/text/27/478.30
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  37. ^ LaPierre, Wayne (May 27, 1999). "Statement of Wayne LaPierre, Executive Vice President, National Rifle Association". commdocs.house.gov (Testimony). Washington, D.C. Retrieved July 4, 2014. 
  38. ^ "One year after tragedy, debate rages over solutions". USA Today. Associated Press. April 12, 2008. Retrieved January 27, 2015. 
  39. ^ Alfano, Sean (April 19, 2007). "Va. Tech Killer Bought 2nd Gun Online". CBS Interactive. Archived from the original on February 5, 2015. Retrieved February 5, 2015. 
  40. ^ Halliwell, Naria (April 9, 2009). "Easy Access: $5,000 and One Hour Buys 10 Guns". ABC News. Retrieved March 6, 2015. 
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  44. ^ "Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico Face Planning and Coordination Challenges" (PDF). gao.gov. United States Government Accountability Office (GAO). June 2009. GAO-09-709. Retrieved June 24, 2014. 
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  63. ^ a b Wintemute, Garen J. (2013). "Comprehensive Background Checks for Firearm Sales: Evidence from Gun Shows". In Webster, Daniel W.; Vernick, Jon S. Reducing Gun Violence in America. Johns Hopkins University Press. ISBN 9781421411101. Retrieved July 1, 2014. 
  64. ^ Martinez, Michael (January 28, 2013). "'Universal background check:' What does it mean?". CNN US. Retrieved July 7, 2014. 
  65. ^ More private sale loophole sources:
  66. ^ Sherfinski, David (January 31, 2013). "NRA head wary on background checks, wants better instant check system". Washington Times. Retrieved July 7, 2014. 
  67. ^ Editorial board (July 2, 2009). "N.J.'s one-a-month gun legislation: Not the gun law we need". Star-Ledger. Sen. Frank Lautenberg (D-N.J.) has been pushing legislation to close this loophole since 1999, without success thanks to the gun lobby's fierce opposition to even rational regulation. 
  68. ^ Khimm, Suzy (April 14, 2010). "Gun Control: What Stupak Got Right". Mother Jones. The Brady Campaign to Prevent Gun Violence is celebrating Stupak for supporting a 1999 bill to restrict gun sales—and urging other legislators to back the current incarnation of the legislation. 
  69. ^ Editorial board (April 17, 2010). "Columbine, 11 Years Later". New York Times. Eleven years later, and Congress has failed to close the gun show loophole that made the carnage possible.... Polls show the public favors closing the gun show loophole by a wide margin, but the people’s right to safety is nothing when compared with the gun lobby’s clout. 
  70. ^ Paulson, Amanda (April 20, 2010). "On Columbine school shooting anniversary, focus on gun 'loophole'". Christian Science Monitor. 
  71. ^ Editorial board (February 26, 2013). "The Latest Hurdle to Gun-Law Reform". New York Times. 
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  76. ^ DeLuca, Matthew (April 10, 2013). "Background checks for guns: What you need to know". NBC News. u.s. news. Retrieved July 1, 2014. 

Further reading[edit]