The Truth About the “Gun Show Loophole”

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We’ve heard this term again and again when debating proposed gun control legislation. People want to close the infamous “gun show loophole,” to stop people from buying guns without a background check. But what does that really mean? What exactly is the “gun show loophole?” And to what extent do sales from gun shows account for the total firearms ownership? To find out, let’s take a trip back to 1950 . . .

With the sole exception of the National Firearms Act of 1934 (which prohibited the ownership of machine guns and other “military” firearms by anyone without government approval), there were no regulations on firearms. In those good ol’ days, anyone of any age could walk into their local hardware store and walk out with a firearm, not needing a background check of any kind. Guns were even offered as mail order items, able to be shipped directly to your front door.

Starting in 1963, the assassinations of President Kennedy, Malcom X, Martin Luther King Jr. and  Robert Kennedy kicked off the modern gun control movement. The unpopularity of the war in Vietnam, combined with the assassination of a much-loved president and other political leaders, led an entire generation to view guns as objects of evil that needed to be removed from society.

The first major piece of legislation to that effect was the Gun Control Act (GCA) of 1968. Signed into law by LBJ, the act began to regulate the flow of firearms in the United States. Using the Commerce Clause of the U.S. Constitution, Congress instituted a system of approved firearms dealers who were the only people allowed to receive firearms shipped across state lines. Manufacturers could only sell their firearms to approved dealers which required the guns to enter the FFL (Federal Firearms Licensee) system administered by the ATF.

The GCA instituted the first form of background checks for firearm sales in the United States, requiring licensed gun dealers to restrict sales of firearms to certain individuals. That included felons, drug users, and other “undesirable” people.

The GCA was extended by the Brady Handgun Violence Prevention Act in 1994, which created a Federal database to run the NICS checks that are still in use today. The National Instant Check System created a database of people who were unable to purchase firearms as per the GCA and required licensed dealers to check against this list every time a firearm was purchased.

While licensed firearms dealers were required to perform background checks, private citizens had no such restrictions placed on them if they were selling their firearm to a resident of the same state. Since the sale of the firearm did not cross state lines, the Federal government could not constitutionally find a way of restricting those sales using the Commerce Clause as it had with the implementation of the FFL system.

So, just to recap the current laws as they stand for firearm sales in general:

  • Guns that cross state lines, or come from a manufacturer, MUST pass through a licensed gun dealer.
  • Licensed gun dealers MUST perform a background check on ALL sales.
  • Private citizens are not required to perform background checks on sales between unlicensed individuals that do not cross state lines.

The confusion with gun shows and the legal implications of sales at those events is due to two facts.

First, not all people at gun shows with tables and offering guns for sale are dealers. While dealers are required by law to perform background checks EVEN AT GUN SHOWS, private citizens who are selling their own collection to other citizens of the same state are not. These are the same rules that apply everywhere else. The only difference is that because these citizens have a table at the show, they may appear to the untrained eye to be the same as gun dealers.

Second, while some states have restrictions on firearms purchases that require a waiting period between the sale and when the buyer takes ownership of the firearm, some states remove that restriction at gun shows. As shows are often a large draw for dealers who travel from far away cities, having the buyer pick up their gun from hundreds of miles away after the waiting period expires doesn’t make much sense. This is the only law that is relaxed at such shows.

In other words, the EXACT SAME REQUIREMENTS for background checks exist at a gun show as anywhere else at any time. There is no difference.

Even if the Federal government wanted to institute mandatory background checks, I doubt that the legislation would pass constitutional muster. Using the Commerce Clause to require background checks for guns that cross state lines is toeing the line pretty closely as-is, and while there are ways that it can be implemented all of them require increased Federal control in an atmosphere where some states are already nullifying Federal laws they disagree with. It sets Congress up for a constitutional showdown that might result in a massive scaling back of Federal powers, which they aren’t prepared to accept.

What would the effects of such a law be? According to Senator Ted Cruz’s research, 1.4% of all firearms used in crimes come from a gun show. Other research indicates that the vast and overwhelming majority of firearms used in crimes are either stolen, or purchased legally after passing a background check. So, in other words, closing the “gun show loophole” would not have any impact on the availability of firearms to criminals. None.

The truth is that the “gun show loophole” is a myth. There is no difference between the laws inside and outside a gun show, at least on a Federal level. And while the idea of performing background checks on everyone that buys a gun might sound good, there’s no way that it can be constitutionally mandated in a way that doesn’t annoy the states to the point of near secession. And even if it were, there would be no noticeable impact on violent crime.