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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 dealers are required to go through an FFL holder before being transferred.

Background

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"

Proposals put forth by United States Attorneys 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.

After the Columbine High School massacre on April 20, 1999, gun shows became controversial in the United States. Those concerned about these events believe that American gun shows are a primary source of illegally trafficked firearms, both within the United States and abroad. Those supporting gun shows believe their Second Amendment rights are being jeopardized.

On May 27, 1999, Wayne LaPierre, executive vice president of the National Rifle Association (NRA), 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."

In February 2001, H. Sterling Burnett of the National Center for Policy Analysis said there is no gun show loophole. He cited a National Institute of Justice study released in 1997 reporting that only 2 percent of criminal guns came from gun shows and a U.S. Bureau of Justice Statistics from the same year saying that among federal firearms offenders only 1.7 percent of crime guns were acquired at gun shows.

Recent developments

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."

The next year, some gun rights group challenged federal jurisdiction in intrastate transactions between private parties, which they said exceeded the federal power created by the Commerce Clause. In January 2010, the NRA said that gun control supporters' objectives are to reduce gun sales and register guns.

After the Sandy Hook Elementary School shooting on December 14, 2012, national debate regarding a gun show loophole was renewed.

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." 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." Indeed, 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.

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." The NRA 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.

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.

See also

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

References

1. ^ "Gun Shows: Brady Checks and Crime Gun Traces" (PDF). atf.gov. Bureau of Alcohol, Tobacco and Firearms (ATF). January 1999. Retrieved June 27, 2014. {{cite web}}: Unknown parameter |authors= ignored (help)
2. ^ "Gun Show Undercover" (PDF). October 2009. p. 11. Retrieved June 26, 2014.
3. ^ "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. p. 27. GAO-09-709. Retrieved June 24, 2014. Cite error: The named reference "GAO09709" was defined multiple times with different content (see the help page).
4. "U.S. Code, Title 18, Part I, Chapter 44, § 922 - Unlawful acts (d)". law.cornell.edu. Legal Information Institute. August 13, 2013. Retrieved June 24, 2014.
5. Clinton, William J. (November 6, 1998). "Memorandum on Preventing Firearms Sales to Prohibited Purchasers" (PDF). gpo.gov.
6. "History of Federal Firearms Laws in the United States Appendix C". justice.gov. Retrieved July 4, 2014.
7. "The debate on gun policies in U.S. and midwest newspapers". Berkley Media Studies Group. 2000-01-01.
8. "Colorado After Columbine The Gun Debate". The Free Library by Farlex. June 1, 2000.
9. "No Questions Asked: Background Checks, Gun Shows, and Crime" (PDF). The Americans for Gun Safety Foundation. April 1, 2001.
10. "Following the Gun" (PDF). Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). June 2000. Archived from the original (PDF) on March 31, 2003.
11. DeConde, Alexander (2003). "School Shootings and Gun Shows". Gun Violence in America: The Struggle for Control. Northeastern University. p. 277. ISBN 1-55553-592-5. OCLC 249850830. The most bitter opponents of checks and licensing, the NRA and other gun clubs, sounded an alarm heard across the country. It immediately brought a massive response as well as a rise in their membership rolls. As a recruiter explained, the antigun sentiment frightened gun owners who believed their Second Amendment rights were in jeopardy. {{cite book}}: External link in |chapterurl= (help); Unknown parameter |chapterurl= ignored (|chapter-url= suggested) (help)
12. "Gun Shows in America: Tupperware® Parties for Criminals". vpc.org. Violence Policy Center. July 1996. Amend the definition of 'engaged in the business' to close the loophole that allows sales from a personal collection in supposed 'pursuit of a hobby.'
13. 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. {{cite web}}: Unknown parameter |event= ignored (help)
14. Burnett, H. Sterling (February 23, 2001). "The Gun Show 'Loophole:' More Gun Control Disguised as Crime Control". ncpa.org. National Center for Policy Analysis.
15. Johnson, Nicholas J. (January 13, 2009). "Imagining Gun Control in America: Understanding the Remainder Problem": 837–891. Retrieved June 24, 2014. {{cite journal}}: Cite journal requires |journal= (help)
16. McCullagh, Declan (June 16, 2009). "Gun Rights Groups Plan State-By-State Revolt". CBS Interactive.
17. Cox, Chris W. (January 21, 2010). "The War on Gun Shows". nraila.org. National Rifle Association of America Institute for Legislative Action. Retrieved July 6, 2014.
18. Dinan, Stephen (December 17, 2012). "Gun bills face tough sailing on Capitol Hill". Washington Times. Retrieved January 19, 2015.
19. Kesling, Ben (December 24, 2012). "Fear of New Restrictions Drives Crowds to Gun Shows". Wall Street Journal. Contributions to article by Jess Bravin. Dow Jones & Company. Retrieved January 19, 2015.
20. ^ Wintemute, Garen J. (2013). "Comprehensive Background Checks for Firearm Sales: Evidence from Gun Shows". In Webster, Daniel W.; Vernick, Jon S. (eds.). Reducing Gun Violence in America. Johns Hopkins University Press. ISBN 9781421411101. Retrieved July 1, 2014. {{cite book}}: External link in |chapterurl= (help); Unknown parameter |chapterurl= ignored (|chapter-url= suggested) (help)
21. "Records Required--Licenses". ATF.GOV. Retrieved July 1, 2014.
22. "FFL Application Form" (PDF). ATF.GOV. ATF. Retrieved July 1, 2014.
23. Martinez, Michael (2013-01-28). "'Universal background check:' What does it mean?". CNN US. Retrieved 7 July 2014.
24. Sherfinski, David (2013-01-31). "NRA head wary on background checks, wants better instant check system". The Washington Times. Retrieved 7 July 2014.
25. Rucker, Philip (August 5, 2013). "Study finds vast online marketplace for guns without background checks". Washington Post. Retrieved June 24, 2014.
26. "2008 Brady Campaign State Scorecard" (PDF). West Virginia Public Broadcasting.
27. "Brady Background Checks: Gun Show Loophole: Frequently Asked questions". September 27, 2009. Archived from the original on September 27, 2009.
28. 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

• 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).

• Gun politics in the United States
• United States firearms law