TTAG commentator JadeGold responded to a recent post on the Mayors Against Illegal Guns’ campaign to force all firearms sellers at gun shows to perform an FBI background check on all purchasers. “Closing the gunshow loophole would close off a channel to the illegal firearm market,” JadeGold opined. “What’s being ignored in the erroneous ‘3% of all illegal gun sales’ is that the gunshow loophole allows persons to go to a gunshow, pick up a smorgasbord of weapons that then wind up as a large segment of the ‘97% illegal market.'” JadeGold’s statistical and rhetorical flourishes are a little misleading. Understandably. In general, there are lies, damn lies and gun control statistics. In specific, as the Talking Heads said, facts all come with points of view. To fully appreciate the relative importance of “closing the gun show loophole” (a.k.a. inhibiting private firearm sales), you need to enter the gun control labyrinth and wrestle with the munitions Minotaur. Or something like that. Anyway, don’t forget to leave some thread behind you.

First off, how big a problem is the “gun show loophole,” really?

The Bureau of Justice’s Survey of State Prison Inmates, 1991 provides the most widely quoted stats on the source of illegal guns. The study’s authors based their results on interviews with 13,986 inmates in 277 correctional facilities (jails to you and me) in 45 states. Page 23 offers a pie chart of the answer to the question “Dude, where’d you get your gun?” (to criminals convicted of gun crimes). Gun shows fall under the “other” category, which accounts for five percent of the total.

Although “other” includes other sources other than gun shows (game shows?), let’s just go with the five percent number. In any case, JadeGold rightly points out that this stat doesn’t tell the whole story. It reflects the number of criminals who purchased a gun at a gun show themselves. It does not include criminals who may have sourced a firearm from “Family or friends” who may have purchased the gun or guns at a gun show.

The family and friends package accounts for 31 percent of all guns used by criminals in the survey. So what percent of that 31 percent bought a gun at a gun show and then funneled the firearm to a felon? While we’re at it, define “friends”? Are they casual acquaintances, semi-professional gun runners or gang members without a criminal record?

The data ain’t there. So we can’t know how much of a slice gun shows occupy in the illegal gun sales pie. It could be anything from less than five percent to, I dunno, 20 percent?

This practice generally—criminals using a legal “straw purchaser” to source a weapon—is certainly a big problem. The question is, how big? Again, there’s no hard data. But the fact that the gun show gun-sourcing method constitutes some part of the process seems to be enough for gun control advocates. Bad guys can get guns from non-felons, and the deal can go down via a gun show. ‘Nuff said. Close the loophole!

The chart at the top of this editorial shows how gun control advocates see gun shows as a crucial nexus in a weapon’s transition (potential or actual) from legal to illegal use. (How inheritance leads to suicide is anybody’s guess.) What it doesn’t show is what would happen if the feds mandated background checks for all gun transactions at gun shows.

The simple answer: nothing. The whole point of a straw purchaser: they’re legal. A background check would yield nothing to stop them from purchasing guns. Closing the loophole would not close the loophole. But it WOULD force buyers onto the feds’ radar. The background check would provide a record for future law enforcement traces on all firearms bought at a gun show.

It’s hard to see that requirement as anything other than a good thing—unless you believe the feds are out to grab your guns. In that case, you don’t want Uncle Sam keeping specific records on ANY firearms transactions. Which they do, now, for a while, anyway. What’s more ALL FFL (Federal Firearms License) gun dealers MUST now record ALL transactions, and protect that registry into perpetuity. Which the feds can examine at any time, without notice or a warrant.

Bottom line on that score: the battle to keep firearm sales records secret from the feds was more or less lost a while ago. Now, ask the average U.S. gun owner if they’d mind sacrificing a measure of privacy for the greater good of helping prevent gun crime, the vast majority would probably support gun show federal transaction registration.

Ah, registration. Gun owners against that sort of thing have drawn a line in the sand: private sales. While they know they can’t fight the feds on FFL record keeping, they do NOT want private gun sales monitored by the federal government. Rightly enough, they see “closing the gun show loophole” as a slippery slope to a requirement that ALL firearm sales be subject to a federal criminal background check.

When Joe sells his AR-15 to Frank, both parties will have to tell Uncle Sam. The transaction will be recorded and federal taxes charged. Paperwork? Yes, there will be paperwork. So if nothing else, this kind of gun registration would be a major league pain in the ass.

Here’s the main problem: none of this would decrease gun crime. As Mr. Kozak likes to point out, there are far too many guns in circulation for the feds—or anyone else—to stuff the ballistic genie back in the bottle. In places where access to guns have been effectively restricted, criminals have been sharing guns. Lest we forget, the fed’s have spent billions of your hard-earned bucks trying to choke off the supply of marijuana, cocaine and methamphetamine. How’s that going?

Chicago’s trying another approach. They’re on the verge of enacting legislation that will increase the criminal penalties for gun buyers/owners knowingly supplying gang members with firearms. Prosecutors will have to prove that the supplier knew that the eventual gun slinger was a gang member, and that the original owner sold the the gang member the weapon.

To get around the “What? He stole It!” defense, the government would have to either catch the seller in the act and/or make it a crime NOT to report a weapon as stolen. (It’s coming.) Even then, what are the odds of a successful prosecution? As is stands, the only effective way the cops can arrest a “straw purchaser” is to buy a gun from them as part of a sting operation. Gang members’ “friends” are too smart for that action.

So gun registration won’t work. Cracking down on straw purchasers won’t work. So what will?

The only answer I can see: rigorously enforce existing laws against convicted felons possessing a firearm. States with dedicated “gun courts” (e.g. Massachusetts) working to impose mandatory sentences for criminals convicted of a gun crime claim they’ve reduced gun crime in their patch. I’m not so sure. Nor am I 100 percent convinced that gun courts and stiff sentences for gun possession serve as an effective deterrent against gun crime.

But it’s certainly true that jailing felons caught with guns decreases the chances of that particular felon committing a gun crime. So why not authorize local, state and federal law enforcement to frisk all gun crime felons for firearms and search their premises at any time? Damned if I know. I can’t think why anyone would consider a random weapons check on a former gun-wielding criminal “indiscriminate search and seizure.” Or not realize the enormous potential benefits of this kind of intrusive enforcement to society.

Voltaire said that common sense is not so common. When it comes to the gun control “debate,” it’s positively MIA. The Mayors Against Illegal Guns need to concentrate their firepower where it can do some good: with effective policing of existing laws. By the same token, gun rights’ groups need to lose their paranoia about federally-imposed tyranny long enough to understand that the feds are, indeed, part of the solution. The ability to trace an illegal firearm on its journey towards anti-social use would benefit us all.

4 Responses to Editorial: The Gun Show Loophole Is What It Is

  1. So why not authorize local, state and federal law enforcement to frisk all gun crime felons for firearms and search their premises at any time? Damned if I know. I can’t think why anyone would consider a random weapons check on a former gun-wielding criminal “indiscriminate search and seizure.”

    4th amendment. Just because someone has been convicted of a crime it doesn't mean they lose all their protections under the Constitution. Now, certainly such provisions can be (and in some cases, are) conditions of parole or probation (because those are contractual arrangments – the convict is free to sit in jail if he doesn't like the terms offered) but once the sentence is served, a person is protected by the Constitution which means no search without a warrant that is supported by Probable Cause (PC in legal-speak.) No PC = no warrant = no search.

    Now your next question might be: Then why are felons prohibited by law from possessing firearms in every state in the union (as well as at Federal level?) Good question and one that the Supreme Court will have to tackle when (not if) that question is raised.

    After all, pre-Heller, when Firearms ownership was not a Constitutionally protected act, States were free to restrict firearms ownership to their heart's content. But post-Heller and post-MacDonald (when the Court will almost certainly rule that the 2nd amendment should be "incorporated" to the states via the 14th Amendment) it becomes a sticky question: Can a felony conviction strip a person of a Constitutionally guaranteed right? Before you say "what about voting", consider that many states have procedures where convicted felons can have their "civil rights" restored, specifically, restoring their right to vote. If possessing a firearm is held to be a similarly important civil right (and you could argue that Heller says that it is) then why should possession of firearms also not be a restorable right?

    For that matter, even without a "restoration of civil rights", convicted felons don't lose their right to speak freely, assemble peaceably, worship whatever religion they want, etc. Convicted felons cannot be compelled to testify against themselves, nor can they have property seized for public purpose without just compensation.

    The Heller and MacDonald decisions are going to have much more impact than many people (on both sides of the gun issue) have considered.

  2. Nice flowchart. However, I prefer the Braga Model which illustrates the primary and secondary gun markets as well as highlighting the three ways criminals can obtain guns without theft: straw purchases, "lying and buying," and corrupt FFLs.

    The 1991 inmate study suffers from a number of flaws. First, the Brady law postdates it which likely renders the retail channel as exaggerated. Second, there are more recent studies (1995 and later) which peg the straw purchase market for crime guns at over 33%.

    I believe you also omit or seriously underestimate the corrupt FFL angle. BATF studies show that 9% of its investigations involve suspected FFL illegalities but this 9% involves nearly half of the illegal crime gun market.

    WRT background checks, I think you're arguing the theory more than the reality. The reality is many states do a poor job on keeping the NICS database current. In fact, fewer than half the states even furnish data on the adjudicated mentally ill and substance abusers. Even those states who participate don't keep it up to date; one state actually said they only had one record of someone who was adjudicated mentally ill or involuntarily committed to a menatl health facility.

    And let's face it, there really is no penalty for lying on a 4473. Why is that? Many states also have no way of checking if someone legally purchases firearms and then goes on to become a felon or mentally ill or a substance abuser.

    You correctly note there's not much data out there. Why is that? I have an answer as to why.

  3. I have recently felt that anyone we trust enough to let out of jail (even if they are on parole) should be allowed to own weapons; why should felons–and especially non-violent felons–be denied their right to self defense?

    On the other hand, I have also felt that any felon who could not be trusted with a weapon, should not be let out of jail. There are too many weapons available for such people, and guns are only a TINY fraction of those weapons!

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