Gun show loophole controversy
Gun show loophole is a pejorative term-of-art that refers to private sellers at gun shows not being required to perform a background check on private buyers, in a longstanding practice of private commerce in the United States. Such commerce is legal by Federal law in all states, but some states have passed laws requiring all gun sales to go through a Federal Firearms License (FFL) holder before being transferred. 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.
During the April 9th, 1986, House floor debate over the Firearm Owners Protection Act it was noted that private-party sales at gun shows have never been required to perform background checks, while Federal Firearms License dealers must comply with the background check requirement for all sales, including at gun shows.
On November 6, 1998, Bill Clinton issued a memorandum for the Secretary of the Treasury and the Attorney General expressing concern about the practice, stating that he felt it made gun shows prime targets for criminals and gun traffickers. In the memo, 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"
In July 2009, Representatives Michael Castle and Carolyn McCarthy introduced the Gun Show Loophole Closing Act of 2009 (H.R. 2324) in the U.S. House of Representatives. Sen. Frank Lautenberg introduced similar legislation, the "Gun Show Background Check Act of 2009"(S. 843), in the U.S. Senate. As of October 2009, the House version of the bill had 35 co-sponsors (mostly Democrats) and the Senate version had 15 co-sponsors, all Democrats.
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.
Opponents of gun control say there is no gun show loophole, only a long-standing tradition of free commerce between private parties that heretofore has not been restricted in the context of secondary, intrastate firearm sales. The National Rifle Association (NRA), citing federal government studies that found less than one percent of imprisoned felons said they obtained their guns from shows, says that when gun control supporters refer to the gun show loophole they are not really talking about criminals getting guns, but about the American people owning guns. They challenge federal jurisdiction in intrastate transactions between private parties, which they say exceeds the federal power created by the Commerce Clause.
According to the Center for Gun Policy and Research, there is no such loophole in federal law, in the sense that the law does not exempt private-party sales at gun shows from regulation that is required elsewhere. They suggest that the fundamental flaw in the gun show loophole 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. 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.
A National Institute of Justice study released in December 1997 reported that two percent of criminal guns came from gun shows. Similarly, a report by the U.S. Bureau of Justice Statistics in 1997 on federal firearms offenders reported 1.7 percent of crime guns are acquired at gun shows.
On May 27, 1999, Wayne LaPierre testified before the House Judiciary Committee Subcommittee on Crime, on behalf of the National Rifle Association, saying that "We think it's reasonable to provide mandatory instant criminal background checks for every sale at every gun show. No loopholes anywhere for anyone," he said. "That means closing the Hinckley loophole so the records of those adjudicated mentally ill are in the system. This isn't new, or a change of position, or a concession. I've been on record on this point consistently, from our national meeting in Denver, to paid national ads and position papers, to news interviews and press appearances."
Use of the gun show loophole was advocated in the summer of 2011 by al-Qaeda operative, Adam Gadahn. He said: "America is absolutely awash with easily obtainable firearms. You can go down to a gun show at the local convention center and come away with a fully automatic assault rifle, without a background check, and most likely without having to show an identification card". The last statement is false. In fact, individuals cannot legally buy a fully automatic firearm at gun shows or anywhere else without extensive background checks and the possession of the appropriate ATF National Firearms Act registry, permit, etc. signed off by the Federal Government and the local chief law enforcement officer. Said automatic weapon must be manufactured prior to 1986 or they cannot be legally possessed or legally transferred to individuals. The only groups allowed to possess post-1986 fully automatic firearms are law enforcement agencies, the military, and licensed importers, manufacturers, and dealers of National Firearms Act firearms. Further all automatic weapon sales must be registered and approved by the ATF along with paying a $200 tax stamp. Individuals on the U.S. terrorism watch list are prohibited from air travel but may purchase firearms.
Some supporters of gun control are pushing for universal background checks, however, the National Rifle Association 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.
United States Attorneys have offered a wide range of proposals to address the gun show loophole. These include the following:
- allowing only FFLs to sell guns at gun shows so that a background check and a firearms transaction record accompany every transaction;
- 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;
- limiting the number of private sales permitted by an individual to a specified number per year;
- requiring persons who sell guns in the secondary market to comply with the record-keeping requirements that are applicable to FFLs;
- requiring all transfers in the secondary market to go through an FFL;
- establishing procedures for the orderly liquidation of inventory belonging to FFLs who surrender their license;
- requiring registration of non-licensed persons who sell guns;
- increasing the punishment for transferring a firearm without a background check as required by the Brady Act;
- 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;
- requiring that one or more ATF agents be present at every gun show; and
- insulating unlicensed vendors from criminal liability if they agree to have purchasers complete a firearms transaction form.
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