“Most Americans support background checks, but they … have very little clue about what that means…” -David Kopel, Constitutional law professor

Let’s get one thing straight. When you hear or read about the “gun show loophole,” you are reading a lie. Propaganda made up by those who want to take away your rights.

First, let’s answer the question, “what is a loophole?”

According to Merriam-Webster, a loophole is, “an error in the way a law, rule, or contract is written that makes it possible for some people to legally avoid obeying it.” An error is “an act or condition of ignorant or imprudent deviation from a code of behavior” or a “mistake.” How we define a mistake is subjective. What some may find objectionable, others will find acceptable.

What is a Gun Show?

The largest gun show in the world is held in Tulsa, Oklahoma
The Wanenmacher gun show, the largest in the world, in Tulsa, Ok 2008

Gun shows are public events similar to a trade show where promoters rent public spaces and invite firearm dealers, knife makers and sellers of related products to display and sell their products. Admission is charged to enter the venue. The ATF estimates about 5,000 gun shows are held in the U.S. every year.

Buying a Firearm at a Gun Show

Federal Firearms License (FFL) dealers must, by law, perform an FBI National Instant Background Check (NICS) on anyone who wants to buy a gun at a gun show.

Any time someone wants to purchase a firearm from an FFL dealer, they must submit and pass a background check before the dealer can transfer the firearm to the buyer. This is law regardless of where the transaction takes place—at a gun show, online, at the dealer’s storefront, home or in a parking lot. It doesn’t matter. If an FFL dealer holds a license to sell firearms, they cannot legally sell or transfer a gun to someone without conducting this FBI background check.

Private Gun Sale Laws

If you purchase a gun from a dealer—at a gun store, gun show or online—by law you must fill out and pass a background check
If you purchase a gun from a dealer—at a gun store, gun show or online—by law you must fill out and pass a background check

If you do not have an FFL license to sell firearms, you are allowed to sell a gun to another individual privately. There are laws dictating private sales:

1. You may not regularly buy and sell firearms for the sole purpose of gaining profit.

2. The individual buying the firearm must be legally allowed to own firearms.

3. It is the seller’s responsibility—morally and legally—to ensure the firearm they are selling isn’t falling into the hands of a prohibited person.

Is There Such Thing as a Gun Show Loophole?

If we discuss semantics, then yes, certainly, some will say without a doubt people being able to circumvent conducting and submitting to a background check before purchasing a firearm is a loophole. But before declaring any winners or losers in this argument, we need to understand the law behind federal background checks—how it was written and the reason why—in order to decide if the law was written in “error.”

The History of Firearm Background Checks

Form 4473 is the name of the Department of Justice form you fill out to conduct a background check for firearm purchases
Form 4473, the background check form

It has only been since 1998 that people have had to submit to and pass a background check to take possession of a firearm…from a licensed dealer. This law falls under the Brady Handgun Violence Prevention Act—also called the Brady Act or Brady Bill.

The anti-gun group credited for helping get this law passed is today called the Brady Campaign to Prevent Gun Violence. The Brady Campaign’s roots were established over 40 years ago in a group called the National Council to Control Handguns founded by Mark Borinsky who was a victim of armed robbery. This organization were staunch supporters of handgun prohibition.

Pete Shields, elected chairman of the National Council to Control Handguns in 1975, said this to a New Yorker journalist, “Our ultimate goal —total control of handguns in the United States… The first problem is to slow down the number of handguns being produced and sold in this country… The final problem is to make possession of all handguns and all handgun ammunition-except for the military, police, licensed security guards, licensed sporting clubs, and licensed gun collectors-totally illegal.”

Throughout most of the United States’ history, guns and gun ownership have never really been an issue—except for in our country’s early stages when British soldiers attempted to disarm the colonists…but that’s a different story—until fairly recently.

Historically, there wasn’t a whole lot of support for firearm bans and anti-gun organizations didn’t have many resources to push their agenda. In fact, there haven’t been many major federally-enacted gun laws (relativity speaking.)

  • The National Firearms Act in 1934, regulating machine guns and suppressors
  • The Gun Control Act of 1968, regulating interstate commerce
  • The Brady Act 1993, requiring background checks
  • Assault Weapons Ban of 1994, banning the manufacture and sale of any new “assault weapon” (AR-15, AK-47, etc.) —now expired

The Brady Bill

On March 30, 1981, Jim Brady, President Reagan’s Press Secretary was shot during an attempt at an assassination on the president. Jim Brady became paralyzed for life. Soon after, his wife, Sarah Brady, spearheaded a campaign to get a background check system put into place. The President’s attempted assassinator was mentally ill, and Sarah believed that if he had gone through a background check, he would have never obtained a firearm.

According to the Brady Campaign, “The original Brady legislation was introduced in 1988. It took six votes over seven years—three presidencies, in fact—until Sarah and her team were able to declare victory. On November 30, 1993, after Sarah and Jim’s seven-year battle, President Bill Clinton signed the “Brady Bill,” into law. Brady background checks would now be required on all handgun purchases at federal licensed firearm dealers.” Today, the group focuses on three issues—passing universal background checks, holding “bad apple” dealers accountable and to “change our culture.”

Ironically, in 2000, Sarah Brady purchased a Remington .30-06 rifle for her son without transferring the firearm through a licensed dealer in a state with universal background checks (transfers between family members being an exception.)

Do you think Sarah would agree that that exception is a “loophole?”

Universal Background Checks 2019

Nancy Pelosi, speaker of the House, helps introduce the new universal background checks act.
Nancy Pelosi, speaker of the House, helps introduce the new universal background checks act.

On Tuesday, January 8, 2019, House Democrats introduced a new Universal Background Check law called the Bipartisan Background Checks Act of 2019. Former House Representative Gabrielle Giffords who was shot during a mass shooting helped introduce the bill. Like many other mass shooters, Giffords’ passed a background check and purchased his firearm legally.

 

 

According to Vice, the new law makes a few exceptions:

  • “Law enforcement, armed private security, or military service members if they’re acting in official duty
  • Private gun exchanges between spouses, immediate family members, aunts, uncles, nieces, nephews, grandparents, and grandchildren
  • Inheritances
  • Temporary transfers to “prevent imminent death or great bodily harm”
  • Temporary transfers in instances of hunting or fishing when the transferrer has no reason to believe the recipient will violate gun laws”

Why a Universal Background Check Law is Misguided

Many people falsely believe there is a federal register list of firearms. There is not. In fact, it is illegal. By law, no list can be kept of firearms and firearm owners. (However, state law can differ but only six states and Washington D.C. require citizens to register their firearms.)

There is no way to enforce a universal background check when two private citizens decide to transfer firearms to each other because it isn’t necessary to alert any government body of the transfer of ownership. The only record kept of a gun sale in those states without expanded background checks (which is most of them) is when an FFL sells a firearm to someone.

There’s no telling if anyone even follows the laws in those states that have passed universal background checks. In studies done in the 19 states and D.C. that have universal background checks, there has been no decrease in murder or suicide rates. Vox writes, “But a growing body of research suggests that comprehensive background checks alone won’t do much, if anything, to combat gun violence in America.”

Background Checks Don’t Pull Up Mental Health Records

The thing is, NICS only pulls up information which is reported to the system. Currently, that is only federal convictions. State-level Constitutional law professor David Kopel says, "Most Americans support background checks, but they … have very little clue about what that means" convictions and mental health adjudications are voluntarily submitted. States are NOT forced to send in their records. So, any unreported mental health record of an individual would STILL NOT SHOW UP ON A NICS report, regardless of a universal background check or not. For example, according to pro-gun control group Mayors Against Illegal Guns, 23 states and the District of Columbia submit less than 100 mental health records to NICS, 17 states submitted less than 10 and 4 don’t send any at all.

So, Why Don’t They Fix That?

President Trump signed the Fix NICS Act in 2018. This act penalizes government agencies that don’t report to NICS. There have been no further bills gaining traction addressing the discrepancy between state records and reporting.

Jennifer Baker, an NRA spokeswoman says, “Instead of looking for effective solutions that will deal with the root cause of violent crime and save lives, anti-gun politicians would rather score political points and push ineffective legislation that doesn’t stop criminals.”

A few facts:

  • In 2010, only 1.2% of NICS checks were declined
  • About 3,000 people a year pass a NICS check even though they are a prohibited person
  • Just 22% of gun owners buy firearms in private sales
  • Only 0.8% of prisoners used a firearm purchased from a gun show

What Do Universal Background Checks Do?

Law Center to Prevent Gun Violence attorney, Lindsay Nichols says, “This loophole means that dangerous criminals and dangerously mentally ill individuals have a most unfettered access to firearms.” However, based on the facts presented here, the Background Checks Act of 2019 doesn’t change that. And Senator Richard Blumenthal (D-Conn.) says universal background checks will “end the American epidemic of gun violence.” Since 80% of firearms used in mass shootings were purchased legally (according to left-leaning Mother Jones,) it is safe to say universal background checks will do nothing to prevent mass shootings.

As it stands, if you still agree there is a “loophole,” then a Universal Background Check law isn’t going to fix bad people from doing really bad things.

This is just another empty promise from a group of people who don’t understand the law.

What do you think about universal background checks? Share your opinion in the comment section.

Click here to tell your representatives to oppose universal background checks. 

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