Well, it has been an interesting few days of discussion again on my blog. Before we were on a "merry-go-round". Now we are on a teeter totter going back and forth and up and down with whether or not it is legal for a private seller to sell a gun to a felon or other prohibited purchaser. My commenters are getting upset with me because they insist that it is totally illegal and anyone who does so should be arrested. And yet, in 34 states, it is not illegal for a private seller to set up shop at a gun show and sell lots of guns to anyone without a background check. Now some of these folks won't sell if someone tells them they can't pass a background check. But if you check out the videos I linked in my The slippery slope post, you will see that others will just wink and sell the gun for cash, with nary a question asked.
Here is a good explanation of gun shows and the exception to the background check requirement granted to "occasional sellers" in the Brady Bill. This Wikipedia article, admittedly not always the best source, seems to provide a good synopsis of the "gun show loophole" as it is called. It cites various studies that I have used as sources in other of my posts and also cites some which I have questioned. At any rate, it is clear by the reports of hidden camera videos and photographs and reports by the ATF, that gun shows are a source of crime guns and that some unlicensed sellers readily sell to people who could be felons and other prohibited purchasers. Some of them do so knowingly, some not. My commenters wonder why they are allowed to get away with this if it is, indeed, illegal to sell to prohibited purchasers. I have been writing that as long as we have not made it illegal to do so, these private sellers are not technically doing anything illegal. The ATF can only monitor about 2% of gun shows a year given their underfunded agency. Obviously, it is difficult to monitor all gun shows for irregularities or actual illegal activities.
Just to offer more clarity about the back and forth, here are a few comments about this issue from my readers:
- " We have no gun show loophole here and you cannot legally bring in a gun form out of state without proper paperwork. If the firearm is on the states AWB list it is NOT importable without special permission." ( writer is from MA)
- " Requiring background checks -- nope, won't do it. If a person wants to (s)he can sell the firearm without going through a dealer. That leads to registration."
- " And yet that is already illegal. It is illegal for felons to purchase firearms, period, no matter who is selling them. It is illegal for felons to possess firearms ever. The things you are complaining about are already illegal - are you aiming for Double Secret Probation or something?"
- " It's never legal for a prohibited person to buy a gun under any circumstance, background check or not. It's not legal for any seller to knowingly sell a gun to a prohibited person. This is current law."
- " You are talking around in circles. It IS illegal for anyone to knowingly sell a firearm to a prohibited person. It is illegal for any prohibited person to buy or possess a firearm. It IS illegal. You are basically saying.. because criminals are breaking the law by doing it, we should make what they are doing illegal. Why is this not so hard to understand? It is illegal to drive a car over the limit of intoxication. Yet people drink and drive. I guess we should make driving drunk, illegal. That is the same argument that you are making here."
- " I make money by selling guns to dangerously mentally ill felons who are also domestic abusers. I go to gun shows, buy legal guns with no background check, and sell them in the 'hood for a tidy profit. To stop this, laws are passed requiring a background check for every firearm sale. I now go to the gunshow, buy legal guns, pass the background check because I make sure to keep squeaky clean, and then drive right down to the 'hood and sell them anyway. Nothing is solved. SELLING GUNS TO FELONS IS ALREADY ILLEGAL, be it a FFL transaction or a private sale. I know this is hard to follow, but CRIMINALS DO NOT OBEY LAWS."
- " I've been to lots of gun shows in various states (East Coast), and I've never seen anything like what was in Bloomberg's videos. Every table dealer at any gun show I've ever been to has been a licensed FFL. The folks in those videos are already criminals, because they're unlicensed dealers. If Bloomberg could find them, ATF can too, and ATF should. Unlicensed dealers help nobody but themselves, and need to get legal or get thrown in prison."
- " We HAVE made it illegal. You can repeat this claim 1000 times and you will still be wrong."
- " This is also already illegal. It is a federal felony to purchase a gun in a state where you are not a legal resident of that state. You talk as if I can just hop on over to PA, MD, or NJ and buy a gun. I can't. As a DE resident I can't legally purchase a gun in another state and transport it back to DE."
- " Apparently you missed the part where I mentioned it is a FEDERAL FELONY.This means it's illegal in ALL STATES."
- " Actually, it IS illegal to be in the "business" of trading firearms without a Federal Firearms License. That is defined somewhat vaguely but anything along the lines of making a profit on a transaction (even a single one) or a significant volume of sales is being in the business. This is a federal thing, and does not vary by state. So, it is totally legit for someone to sell a few firearms to clear out their safe, or to trade an old gun they no longer desire, or to sell guns in order to further a collection (in the case of FFL03 C&R holders). It is NOT legal to buy and sell firearms on a regular (or semi-regular) basis with the intent of making a profit."
- " Just so you know: Federal law mandates that anyone "engaged in the business" of selling firearms must register as a FFL and conduct a NICS background check for all firearm transfers, regardless if it's at their store, their home, or a gunshow. Gunshow dealers who sell firearms to criminals are breaking the law. More legislation will not fix that."
The ATF (Alcohol, Tobacco and Firearms) agency has a very clear statement about the tracing of crime guns and how they work with law enforcement to find out where crime guns came from in the first place. There has also been a back and forth about that. Here is a good link to the ATF and crime gun tracing that offers a good explanation of how this works. It is clear from this document that there is a way to trace crime guns to the original owner. All gun sales start out as legal sales and then some end up in the hands of prohibited purchasers in various ways. In order to properly prosecute criminals or discover evidence in a crime, it is important for the ATF and local law enforcement authorities to work together. This will only help us all in the end and particularly law enforcement agencies and victims of crime. The system is not meant to punish law abiding citizens as some of my readers are sure it does. If you read this document, you will see how careful the ATF is to do a trace only when asked by local law enforcement in a "bona fide criminal investigation." Rights of law abiding citizens are protected.
And finally, this question was asked of me: " In the interest of discussion, will you agree that it is a "private buyer" loophole and not a "gun show" loophole so we can move past that issue?" I like this question because it actually furthers the discussion and could lead to something productive. It goes back to my blog about semantics. Maybe we go around and around and back and forth because we are talking about different things. Certainly you can see by the comments above that people in states that have stricter gun laws may not have had experience with gun laws in other states such as my own where laws are different. That has been my point all along but maybe I have not made that clear enough. And, of course, that is why many like me want a national law to deal with the background check inconsistencies that can lead to guns in the hands of prohibited purchasers.
So we teeter totter and teeter on the edge of common ground, not reaching it. The facts do support what I am saying, though. In many states, it is just plain NOT illegal for private sellers to sell to anyone (which could include prohibited purchasers) without background checks. The proof has been offered in my links to videos and reports. I don't know how it could be construed to be any other way. I am not sure why my commenters are so vociferous in their denial of the facts. If they have nothing to fear from going through a background check at a Federally Licensed Firearms Dealer where they are already required, I don't know why they should object to requiring them on all gun sales at gun shows. Background checks on all gun sales at gun shows makes common sense.