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'''Gun show loophole''' is a U.S. political term referring to private sellers at gun shows not being required to perform a [[National Instant Criminal Background Check System|background check]] on private buyers that purchase used firearms in the second hand market. Under federal law, only [[Federal Firearm License|Federal Firearm Licensee]] (FFL) gun dealers are required to perform background checks and maintain records for retail purchases of firearms. All interstate sales between private parties are prohibited.
'''Gun show loophole''' is a U.S. political term referring to private sellers at gun shows not being required to perform a [[National Instant Criminal Background Check System|background check]] on private buyers that purchase used firearms in the second hand market. Under federal law, only [[Federal Firearm License|Federal Firearm Licensee]] (FFL) gun dealers are required to perform background checks and maintain records for retail purchases of firearms. All interstate sales between private parties are prohibited, while certain transfers are not.


Gun control advocates say the loophole allows prohibited buyers to use gun shows to buy weapons without a background check.
Gun control advocates say the loophole allows prohibited buyers to use gun shows to buy weapons without a background check.

Revision as of 01:25, 13 February 2015

This article is about a U.S. political term. For information about U.S. gun shows themselves, see Gun shows in the United States.
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Gun show loophole is a U.S. political term referring to private sellers at gun shows not being required to perform a background check on private buyers that purchase used firearms in the second hand market. Under federal law, only Federal Firearm Licensee (FFL) gun dealers are required to perform background checks and maintain records for retail purchases of firearms. All interstate sales between private parties are prohibited, while certain transfers are not.

Gun control advocates say the loophole allows prohibited buyers to use gun shows to buy weapons without a background check.

Gun rights advocates say that there is no loophole, and that a federal law requiring background checks for all private party sales, whether at gun shows or not, would exceed the government's authority and be a prelude to registration and confiscation.

Seven gun show loophole bills were introduced in Congress between 2001 and 2013, but none passed. The U.S. capital and 17 states require background checks for some or all private firearm sales. The remaining 33 states do not restrict private, intrastate sales of used firearms between private individuals, whether at gun shows or elsewhere.

Background

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.[1] It also mandated that licensed firearm dealers maintain records of sales of firearms.[1] Under the GCA, firearm dealers were prohibited from doing business anywhere except the address listed on their Federal Firearms License (FFL).

In 1986, Congress passed the Firearm Owners Protection Act (FOPA), which relaxed controls in the GCA.[nb 1] Licensed firearm dealers were allowed to sell at gun shows. In addition, 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 record of the sale is required by federal law.[4][5][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 private sellers were not regulated by the Brady Act, but may be subject to other federal, state, and local restrictions.[7]

Early efforts

In 1996, the Violence Policy Center (VPC) said that an increase in gun shows resulted in "a readily available source of weapons and ammunition for a wide variety of criminals...."[8] Analyzing data from 1997, the National Institute of Justice released a report saying that among State inmates who owned a gun, fewer than 2 percent bought them at a flea market or gun show.[9] Attorney and gun rights advocate 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."[10]

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.[11] 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.[4][11] These offices reported gaps in current law and recommended "extending the Brady Law to 'close the gun show loophole.'"[5] 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.[4]: 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."[4]: 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.[4]: 17 

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.[12][13][14] 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."[15]: 118  Those concerned about the shows believed they were a source of illegally trafficked firearms.[16][nb 3] Efforts to reverse a key feature of FOPA by requiring criminal background checks and purchase records on private sales at gun shows, which had become prolific in the U.S. since the law's passage in 1986, were unsuccessful.[18][19]

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.[20] 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.[21]

The Virginia Tech shooting on April 16, 2007 again brought discussion of the gun show loophole to the forefront of U.S. politics,[22] 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.[23] Two weeks after the massacre, Virginia governor Tim Kaine signed a law to close the loophole at gun shows within the state.[24]

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."[25]

The following year, gun rights supporters challenged federal jurisdiction in intrastate transactions between private parties, which they said exceeded the federal power created by the Commerce Clause.[26] For gun rights supporters there is no "loophole," but legal commerce under the status quo (like book fairs or car shows).[27]

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."[28]: 5  The NRA said that gun control supporters' objectives are to reduce gun sales and register guns.[6] An associate professor of communications wrote that "gun show loophole" is a euphemism for the disarmament of private citizens.[29]

Recent developments

Main article: Universal background checks

After the July 2012 Aurora shooting in Colorado,[30] the October 2012 Azana Spa shootings in Wisconsin,[31][32] and the December 2012 Sandy Hook Elementary School shooting in Connecticut, state and local debates regarding the gun show loophole resumed.[33] 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."[34] The handgun in the Azana Spa shooting was purchased legally in a private transaction, not at a gun show.[35] The Sandy Hook shooter used weapons legally purchased by his mother.[36]: 16 [37]

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."[38]: 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."[38]

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."[39] Some now refer to the gun show loophole as the "private sale loophole."[40][41][42]

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.[43]

Legislation

Federal "Gun Show Loophole" bills were introduced in seven consecutive Congresses, in 2001 (H.R. 2377), 2004 (H.R. 3832), 2005 (H.R. 3540), 2007 (H.R. 96), 2009 (H.R. 2324), 2011 (H.R. 591), and 2013 (H.R. 141). None passed.

As of August 2013, 17 U.S. states and Washington, D.C., require background checks at gun shows.[44][45] 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.[46][47][48]

See also

Notes

  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.[2][3]
  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."[6]
  3. ^ A report released in 2009, 10 years after Columbine, discussed the role that gun shows play in trafficking to Mexico.[17]

References

  1. ^ a b Wintemute, Garen J.; Braga, Anthony A.; Kennedy, David M. (August 5, 2010). "Private-Party Gun Sales, Regulation, and Public Safety". The New England Journal of Medicine. 363 (6). Massachusetts Medical Society: 508–511. doi:10.1056/NEJMp1006326. Retrieved 26 June 2014.
  2. ^ Jonathan, Masters (July 15, 2013). "U.S. Gun Policy: Global Comparisons". cfr.org. Retrieved January 29, 2015.
  3. ^ Steele, Cameron (February 15, 2013). "Sheriff Bailey, Chief Monroe: Close gun show loophole". ncpa.org. Retrieved January 29, 2015.
  4. ^ a b c d e "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}}: Cite uses deprecated parameter |authors= (help)
  5. ^ a b "History of Federal Firearms Laws in the United States Appendix C". justice.gov. Retrieved July 4, 2014. Cite error: The named reference "History-C" was defined multiple times with different content (see the help page).
  6. ^ a b 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.
  7. ^ "ATF: Brady Law". Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). 2015. Archived from the original on September 26, 2014. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  8. ^ "Gun Shows in America: Tupperware® Parties for Criminals". Violence Policy Center. July 1996. Retrieved February 2, 2015.
  9. ^ Harlow, Caroline Wolf (November 2001). "Firearm Use by Offenders" (PDF). Bureau of Justice Statistics. U.S. Department of Justice. Retrieved February 10, 2015.
  10. ^ Kopel, Dave (July 16, 1999). "Gun Shows Under Attack". nraila.org. National Rifle Association of American Institute for Legislative Action. Retrieved February 5, 2015.
  11. ^ a b Clinton, William J. (November 6, 1998). "Memorandum on Preventing Firearms Sales to Prohibited Purchasers" (PDF). gpo.gov.
  12. ^ "The debate on gun policies in U.S. and midwest newspapers". Berkeley Media Studies Group. January 1, 2000.
  13. ^ National Conference of State Legislatures (June 1, 2000). "Colorado After Columbine The Gun Debate". The Free Library by Farlex. Gale Group.
  14. ^ "No Questions Asked: Background Checks, Gun Shows, and Crime" (PDF). Americans for Gun Safety Foundation. April 1, 2001.
  15. ^ 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)
  16. ^ "Following the Gun: Enforcing Federal Laws Against Firearms Traffickers" (PDF). Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). June 2000. Archived from the original (PDF) on March 31, 2003.
  17. ^ "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.
  18. ^ Olinger, David (February 13, 2000). "Dealers live for gun shows". Denverpost.com. Retrieved January 29, 2015.
  19. ^ Baum, Dan (June 8, 2000). "What I saw at the gun show". rollingstone.com. Retrieved January 30, 2015.
  20. ^ Kopel, David (January 10, 2000). "The Facts about Gun Shows". cato.org. Retrieved February 5, 2015.
  21. ^ 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. {{cite book}}: External link in |chapterurl= (help); Unknown parameter |chapterurl= ignored (|chapter-url= suggested) (help)
  22. ^ "One year after tragedy, debate rages over solutions". USA Today. Associated Press. April 12, 2008. Retrieved January 27, 2015.
  23. ^ 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. {{cite news}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  24. ^ Urbina, Ian (May 1, 2007). "Virginia Ends a Loophole in Gun Laws". New York Times. Retrieved January 27, 2015.
  25. ^ 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)
  26. ^ McCullagh, Declan (June 16, 2009). "Gun Rights Groups Plan State-By-State Revolt". CBS Interactive.
  27. ^ Keefe, Mark A. (October 1, 2009). "The Truth About Gun Shows". nraila.org. National Rifle Association of America Institute for Legislative Action. Retrieved January 29, 2015.
  28. ^ Vice, Daniel R.; Long, Robyn; Eftekhari, Elika (January 2010). "President Obama's First Year: Failed Leadership, Lost Lives" (PDF). Brady Campaign to Prevent Gun Violence. Retrieved February 10, 2015.
  29. ^ Patrick, Brian Anse (2010). Rise of the Anti-media: Informing America's Concealed Weapon Carry Movement. Rowman & Littlefield. p. 65. Retrieved February 6, 2015.
  30. ^ Burns, Dan (January 14, 2013). "Aurora shooting victim's mother grieves with Newtown families". Reuters. Retrieved February 2, 2015.
  31. ^ Davis, Stephen; Polcyn, Bryan (November 7, 2013). "Guns for sale: No background check required". fox6now.com. Retrieved January 31, 2015.
  32. ^ Fuchs, Erin (December 19, 2012). "There's A Gaping Loophole In US Gun Laws". businessinsider.com. Retrieved January 31, 2015.
  33. ^ 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.
  34. ^ Keene, David (October 1, 2012). "It's Impossible To Legislate Against Evil Or Madness". nrapublications.org. Retrieved February 5, 2015.
  35. ^ Ramde, Dinesh; Bauer, Scott (October 22, 2012). "Wis. shooting brings call for new law on guns". Seattle Times.
  36. ^ Office of the State's Attorney, Judicial District of Danbury (November 25, 2013). "Sandy Hook Final Report" (PDF).
  37. ^ Childress, Sarah (March 28, 2013). "What Police Found in Adam Lanza's Home". PBS.
  38. ^ a b 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)
  39. ^ Martinez, Michael (January 28, 2013). "'Universal background check:' What does it mean?". CNN US. Retrieved July 7, 2014.
  40. ^ 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.
  41. ^ Shapiro, Eliza (November 29, 2012). "Gun-Control Lobby Targets Obama, Demands Reform". Daily Beast.
  42. ^ More private sale loophole sources:
  43. ^ Sherfinski, David (January 31, 2013). "NRA head wary on background checks, wants better instant check system". Washington Times. Retrieved July 7, 2014.
  44. ^ Rucker, Philip (August 5, 2013). "Study finds vast online marketplace for guns without background checks". Washington Post. Retrieved June 24, 2014.
  45. ^ "Universal Background Checks & the Private Sale Loophole Policy Summary". Smart Gun Laws. Law Center to Prevent Gun Violence. August 21, 2013. Retrieved January 28, 2015.
  46. ^ "2008 Brady Campaign State Scorecard" (PDF). West Virginia Public Broadcasting.
  47. ^ "Brady Background Checks: Gun Show Loophole: Frequently Asked questions". September 27, 2009. Archived from the original on September 27, 2009.
  48. ^ 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

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